Ajay Kumar Sharma vs The State of Bihar and Others

Chandra Mohan Prasad, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure with a prayer to quash the order dated 31.1.2004 of the learned Judicial Magistrate, 1st Class, Patna passed in Complaint Case No. 372(C) of 1999 whereby the petition filed by the petitioner and other accused persons praying for permitting to be represented through the lawyer u/s 205 of the Code of Criminal Procedure during the trial has been rejected by the learned Magistrate. It appears that in this case cognizance of the offence u/s 138 of the Negotiable Instruments Act has been taken against the petitioner and others due to bouncing of the cheque issued by M/s Assay Auto Lube Ltd., 442, Kewal Industrial Estate, S.B. Marg, Lower Parel, Bombay, 13. it is said that the petitioner and other accused of the complaint petition are the Directors of the Company, hence they have been made accused in this case. It appears that after taking of cognizance of the offences and issuance of summons a petition was filed on behalf of the petitioner praying for his personal exemption from appearance during the trial and allowing him to be represented by his lawyer.

Learned Counsel for the petitioner submitted that the petitioner had sought exemption from his personal appearance on the ground that he was one of the Directors of the Company and that he was permanently residing at Bombay and he always remained engaged in his business work and that it would not be possible for him to personally appear before the court on each and every date. It was further submitted that the learned Magistrate has rejected the prayer mainly being impressed with the ground that the petitioner''s anticipatory prayer for bail was rejected. Learned Counsel has also submitted that the petitioner undertakes that he will remain physically present on any specific date as and when specifically directed by the court.

Considering the facts and circumstances of the case I feel that the petitioner''s prayer for granting exemption for personal physical appearance u/s 205 of the Code of Criminal Procedure is just and he is entitled to that privilege. In such view of the matters the impugned order dated 31.1.2004 of the learned Magistrate is set aside in so far as it disallowed the petitioner''s prayer as made u/s 205 of the Code of Criminal Procedure. The petitioner will be allowed exemption from his personal appearance and be represented by his lawyer and that the petitioner will be physically present on such dates as and when specifically directed by the trial court. Thus the impugned order dated 31.1.2004 is hereby set aside and this application is allowed.