Sunil Jhunjhunwala vs State of West Bengal

Provendu Narayan Sinha, J.—This revisional application is directed against order dated 6.11.03 passed by the learned Chief Metropolitan Magistrate, Calcutta, in Case No. C/5015/ 2003 thereby refusing the prayer of the petitioner for exemption from personal appearance u/s 205 of the Criminal Procedure Code.

Heard learned Advocate for the petitioner as well as learned Advocate for the State. It appears that the learned Magistrate by order dated 25.8.03 took cognizance of the offence u/s 85(a)(i)(a) of the E.S.I. Act and issued process against the petitioner and others. On 6.11.03 an application u/s 205 of the Criminal Procedure Code was filed before the learned Magistrate but the learned Magistrate kept that petition pending and directed that the said application would be heard after their personal appearance.

I am of the opinion that in case of such this nature, the accused can be permitted to be represented u/s 205 of the Criminal Procedure Code before first appearance in Court. The Supreme Court has made it clear in the case of Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd. and Ors., reported in 2001 C Cr LR (SC) 481. I am of the opinion that in this case the accused petitioner may be permitted to be represented u/s 205 of the Criminal Procedure Code by any learned Advocate who would represent him in the Court below. The accused will submit a written undertaking before the learned Court that he will not challenge the identity and the trial will proceed in his absence.

Accordingly, I dispose of this revisional application by directing the learned Chief Metropolitan Magistrate, Calcutta, to allow the prayer of the petitioner for representation u/s 205 of the Criminal Procedure Code without first appearance before him.

Criminal Section is directed to send a copy of this order to the learned Chief Metropolitan Magistrate, Calcutta, by special messenger at the cost of the petitioner to be deposited by tomorrow.