JUDGMENT
P.N. Sinha, J.
1. As the points involved in these three re-visional applications are identical and same and as all the three revisional applications arose of the order, dated February 9, 2004, passed by the learned Chief Metropolitan Magistrate (hereinafter called the CMM), calcutta in Case No. C of 5035 of 2003, I inend to dispose of these three revisional applications by common judgment and order.
2. Facts of the case giving rise to these three revisional applications are as follows:
Complaint Case No. C of 5035 of 2003, was started on the basis of complaint lodged by Sri Mangal Bhattacharya, Insurance Inspector, West Bengal, on September 18, 2003, before the learned CMM against the petitioners including the companies namely Delta Ltd., alleging inter alia that the accused persons had failed to pay employer’s share of contribution under the ESI Scheme in respect of the employees working in the said factory covering the period from April 2003 to May 2003 and the petitioners and the company thereby contravened the provisions of E.S.I. Act and : are liable to be prosecuted under Section 85(a) of the Employees’ State Insurance Act, 1948. Learned Magistrate by order, dated September 18, 2003, took cognizance of offence on the basis of the complaint and issued summons to the accused persons. After receiving summons the petitioners appeared through their learned advocate before the learned Magistrate on February 9, 2004 and filed application under Section 205 of the Code of Criminal Procedure (hereinafter called the Code) praying for exemption of their personal attendance. The learned Magistrate by order, dated February 9, 2004, allowed representation of the company under Section 205 of the Code and rejected the 2 prayer under Section 205 of the Code in respect of accused Nos. 3 and 4 namely Sri N. Agarwal and Sri S.K. Chokhoni and allowed the application under Section 205 of the Code of accused No. 2 Sri S.K. Jhunjhunwala for three months as he sustained fracture in his right hand. Challenging the order, dated February 9, 2004, passed by the learned CMM the accused No. 3 Sri N. Agarwal has preferred the Criminal Re visional Application No. 525 of 2004, the accused No. 4, Sri S.K. Chokhoni has preferred Criminal Revisional Application No. 526 of 2004 and accused No. 2 S.K. Jhunjhunwala has preferred Criminal Application No. 527 of 2004.
3. Learned advocate for the petitioner in all the three revisional applications contended that the learned Magistrate failed to apply judicial mind and the order passed by him is, bad in law. The instant case is based solely on documentary evidence and, therefore, presence of petitioner on all the dates during trial is not necessary. Learned Magistrate erred in law and failed to realise true spirit and perspective of the provisions of Section 205 of the Code. He contended that a Division Bench of this Court in 1988 C. Cr. L.R. (Cal) 221, Ajit Kumar Chakraborty v. Sreerrampore Municipality observed that there is nothing in Sub-section (1), of Section 205 of the Code to give even the’ remotest indication that in order to claim exemption from personal attendance the accused must, at the first instance, appear personally in Court. Recently, the Supreme Court in Bhaskar Industries, Ltd. v. Bhiwani Denim and Apparels Ltd. has observed that in appropriate cases the learned Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record plea of the accused even when his counsel makes such plea on behalf of the accused in a case where personal appearance of the accused is dispensed with. Therefore, in the instant case under Section 85(a) of the E.S.I. Act which is based solely on documentary evidence, the accused petitioners, who were (sic) busy businessmen should be permitted to be represented under Section 205 of the Code and their personal appearance may be exempted even appearance before Court for the first time.
4. Learned advocate appearing for O.P. No. 2 contended that this Court in Abhijit Sen v. Sibendu Basu reported in 2001 C. Cr. L.R. Cal. 227, relying on Supreme Court’s decision in V.K. Jain case observed that a prayer for exemption can only be made after the first appearance of the accused. The Supreme Court Hn V.K Jain v. Union of India reported in 2001 (1) SCC 709 observed that exemption from personal appearance can only be done after making first appearance in the Court below. He contended that, the order of the learned Magistrate was, therefore, not bad in law. There is factual difference, in the reported case of Ajit Kumar Chakraborty (supra), and Bhaskar Industries (supra), from the present case. Moreover, it is not the dictum of the Supreme Court that in all cases while summons was issued the learned Magistrate should allow an accused to make even first appearance through a counsel. If such was the law then in not a single case where summons was issued ; accused would appear personally in Courts. Therefore, in the instant case the accused petitioners, who have filed the revisions, should appear first before the learned Magistrate, and thereafter, learned Magistrate ..may consider their prayer for exemption of personal appearance.
5. After hearing the submissions of the learned advocate and going through the revisional applications and annexures made therein I find that the Insurance Inspector has lodged complaint against the petitioners for the offence punishable under Section 85(a) of the E.S.I. Act, 1948, and the complaint filed before the learned CMM has been registered as Case No. C/5035/2003. After taking cognizance learned Magistrate issued process in the form of summons against the accused persons who are namely, accused No. 1 is the company and accused No. 2 to 4 are directors who are the present petitioners of these revisional applications. The accused No. 2 to 4′. did not appear personally and filed application for representation under Section 205 of the Code and for the accused No. 1 company application for representation under Section 305 of the Code was made. Learned Magistrate: allowed the prayer for representation of company under Section 305 of the Code but rejected prayer of the accused petitioners for representations under Section 205 of the Code and allowed prayer of accused No. 2 Sri S.K. Jhunjhunwala for three months only as there has been fracture in his right hand. Now the point for determination is whether the learned Magistrate exercised his jurisdiction properly or not.
6. Learned advocate for the petitioners relied on two decisions namely Ajit Kumar Chakraborty (supra), and Bhaskar Industries, Ltd. (supra). In Ajit Kumar Chakraborty case (supra), there was a complaint under Section 501 of the Bengal Municipal Act and it was a summons procedure case. Bhaskar Industries, Ltd., is based on Section 138 of the N.I. Act and it is also a summons procedure case. On the contrary, learned advocate for the opposite party relied on two decisions namely, V.K. Jain (supra) and Dr. Abhijit Sen (supra). V.K Jain case was also based on provisions of Section 138 of the N.I. Act and Dr. Abhijit Sen case also was based on Sections 138/141 of the N.I. Act. In both V. K Jain (supra), and Bhaskar Industries Ltd. (supra), principle of law was pronounced concerning complaint under Section 138 of the N.I. Act and one of the Lordships was the same in both the reported cases. In Bhaskar Industries Ltd., it has been indicated by the Hon’ble Supreme Court that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. His Lordship sitting with another Lordship in earlier decision in V.K Jain (supra), observed that exemption from personal appearance can be done only after making first appearance in the Court concerned. It is clear, therefore, there is marginal difference between the two decisions namely V. K. Jain and Bhaskar Industries Ltd., passed by the Apex Court of India.
7. Question is whether in the instant matter Bhaskar Industries Ltd. (supra), should be followed or V.K. Jain (supra), should be followed. It is well-known that punishment under Section 85(a) of the E.S.I. Act may extend to three years but it shall not be less than one year in case of failure to pay employee’s contribution and shall also be liable to pay fine of ten thousand rupees and, therefore, it is a warrant procedure case and not a summons procedure case. The Supreme Court made such observation in Bhaskar Industries Ltd. considering that the complaint was filed in the Court of learned Judicial Magistrate at Bhopal whereas the first accused being company having its registered office at Bhiwani in Haryana. Other accused persons were living at far distant places from Bhopal, some were in Haryana while some others were in Chandigarh and some others were in New Delhi. Considering that the accused person being businessmen and often remain busy with their business, and had to travel from different places for their business and as they reside far away from the Court where the complaint was lodged, it was made clear by the Supreme Court that, in appropriate cases the Magistrate can allow an accused to make even first appearance through a counsel. In the instant matter the accused persons are not residing far away from the Court of the learned CMM, Calcutta and the accused petitioners reside at Howrah and Calcutta, i.e., very near to Court and the registered office of the company is at 4, Council House Street, Calcutta 700 001. No doubt, the accused persons are businessmen but they do not reside far away from Calcutta or far away from Court where complaint has been filed. It is not difficult for them to appear before (sic) Court for their first appearance and thereafter the learned Magistrate may consider their representation under Section 205 of the Code. In my opinion, it is not a fit case where personal attendance may exempted even without first appearance in Court. In the instant case the petitioners should appear in the Court first, and thereafter, the learned Magistrate] shall exempt them from personal appearance on following conditions as laid down in V. K. Jain (supra) case.
(i) A counsel on their behalf would be- present in the Court on days when their case would be taken up.
(ii) They will not dispute their identity as the accused in the said case.
(iii) They will be present in Court when such’ presence is imperatively needed.
The above discussion makes it clear that the learned Magistrate made no mistake by asking them to appear in the Court first. There is no ground to interfere with the impugned order passed by the learned Magistrate. There is no merit in the revisional applications and the revisional applications are accordingly imposed of. The petitioners are at liberty to appear before the learned Magistrate as early as they can and after their appearance the learned Magistrate shall consider their application under Section 205 of the Code, in ‘accordance with law and in view of the indications as made above. I direct the learned CMM to proceed with the trial either by himself or by any Metropolitan Magistrate and to conclude the same as expeditiously as possible.
8. All interim orders passed earlier in these revisional applications stand vacated.
9. This order will govern all the three criminal revision applications bearing numbers CRR 525 of 2004, CRR 526 of 2004 and CRR 527 of 2004.
10. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.