JUDGMENT
S.K. Agarwal, J.
1. This petition under Section 482 Cr.P.C. is
directed against order 28th June, 2001 passed by Sh. A.K.
Sarpal, Metropolitan Magistrate, Delhi dismissing the
application of the petitioner under Section 205 Cr.P.C.
seeking exemption from personal appearance during the
trial.
2. Facts in brief are that respondent No.2 filed a
complaint under Section 138 of Negotiable Instruments Act
(for short ‘N.I.Act’) against the petitioner alleging that
petitioner had issued a cheque for a sum of Rs. 70,000/-
drawn on UCO Bank, Noida (UP) in his favor. The said
cheque, on presentation, was dishonoured with the remarks
‘refer to drawer’ due to funds not being sufficient in the
account of the petitioner. The petitioner did not make
the payment of the cheque amount even after the legal
notice. By order dated 18th September, 1995, trial court
took cognizance and summons were issued for appearance of
the petitioner to face the trial. In compliance of the
summons, petitioner appeared before the trial court and
was admitted on bail. Thereafter, she was served with a
notice under Section 251 Cr.P.C. to which she pleaded not
guilty and claimed trial. The matter was then adjourned
for evidence of the complainant. The petitioner moved an
application seeking exemption from personal appearance
during the trial. The trial court vide order dated 30th
May, 2000 dismissed the application. Aggrieved by the
said order, petitioner moved a petition under Section 482
Cr.P.C. before this Court seeking directions to the trial
court to dispense with appearance of the petitioner in the
said case. Hon’ble Mr. Justice R.C. Chopra vide order
dated 18th April, 2001 passed in Crl. M.(M) No. 4668/2000
directed the petitioner to move a fresh application for
exemption before the trial court and directed the trial
court to decide the application in accordance with law
laid down in Geeta Sethi v. State, Crl. M.(M). No. 4685/2000
decided on 12th March, 2000 and S.Nihal Singh and others
v. Arjan Das, 1985 Crl. L. J. 467. Thereafter, the
petitioner again moved an application for exemption
stating therein that she is a permanent resident of
Bombay; she has a small baby to take care of; she has to
face difficulties in traveling from bombay to Delhi on
all dates of hearing; the question of identity is not
involved in the trial and she undertook to appear before
the court as and when required. The trial court vide
impugned order dated 28th June, 2001 dismissed the
application observing:
“This fact is not disputed that
accused is a rich lady and a wife of film
star. No proof has been placed on record
that she has a small child or what is the
age of that child. Even if for the sake
of arguments it is presumed that she has
a small child to lookafter but it is not
alleged in her application that there is
no other person including family member
or servant to lookafter the child in her
absence. Though admittedly she is a
resident of Bombay but now a days Bombay
is well connected with the Delhi by fast
trains and airways. No problem would
arise for the accused to come to Delhi to
attend the date of hearing as it is not
alleged that she had financial problem.
The Delhi High Court in Geeta Sethi’s
case granted exemption to the lady which
was old and sick. But here in he
present case the accused is not an old
lady or suffering from any ailment.”
3. The above order is under challenge. I have
heard learned counsel for the parties and have been
taken through the record. Learned counsel for
respondent No.2 very fairly conceded that grant or
refusal of exemption is within the discretion of the
Court.
4. admittedly, petitioner is a permanent resident
of Bombay. She has ben summoned as an accused for the
offence under Section 138 of N.I. Act which dies not
involve any moral turpitude. It is a summons trial
case. Section 205 Cr.P.C. constitutes an exception to
the general rule that the accused must be present in
person in the course of enquiry for trial during the
criminal case. this Section empowers the magistrate to
dispense with the personal appearance of the accused.
Power under this Section can be exercised not only when
the summons are issued against the accused but also at
the initial stage. Sub-section (1) of Section 205
Cr.P.C. undoubtedly gives very wide discretion to the
Magistrate issuing summons to decide whether the accused
should appear in person or should be permitted to appear
through a lawyer but such discretion must be exercised
judiciously. It is a settled proposition of law that
wherever discretion is vested with court it has to be
exercised judiciously keeping in view the attending
circumstances. For the propose of granting exemption
from personal appearance, the court is only to see
whether it would prejudice the progress of the trial.
There must be cogent and convincing reasons for
rejection of such application. Exemption should not be
refused if accused is likely to be put to avoidable
hardship and harassment. The power to dispense with the
personal attendance of the accused should be liberally
exercised except in the criminal case of serious nature
involving moral turpitude or where the offence is
punishable with a sentence of long imprisonment. The
court should examine the matter and see whether any
useful purpose is likely to be served by requiring the
personal appearance of the accused. Personal attendance
of the accused to receive notice regarding the substance
of accusation and the plea of guilty thereto or not can
also be recorded in suitable cases in absentia as has
been held by Apex Court as well as by this Court in
several authoritative pronouncements.
5. The Apex Court in the recent decision passed
in Bhaskar Industries Ltd. v. Bhiwani
Denim and Apparels Ltd. and Ors. 2001 (2) JCC (SC) 127
considered the Section 317 Cr.P.C. which provides
enquiries and trial being held in the absence of the
accuse din certain cases. While considering Section 205
Cr.P.C. which empowers the Magistrate to dispense with
the personal attendance of the accused it was held:-
“The position, therefore, bogs down to
this: It is within the powers of a
Magistrate and in his judicial discretion
to dispense with the personal appearance
of an accused either throughout or at any
particular stage of such proceedings in a
summons case, if the Magistrate finds
that insistence of his personal presence
would itself inflict enormous suffering
or tribulations to him, and the
comparative advantage would be less.
Such discretion need be exercised only in
rare instances where due to the far
distance at which the accused resides or
carries on business or on account of any
physical or other good reasons the
Magistrate feels that dispensing with the
personal attendance or the accused would
only by in the interests of justice.
However, the Magistrate who grants such
benefit to the accused must take the
precautions enumerated above, as a matter
of course.”
(emphasis supplied)
6. To concluded, while considering the exemption
application, the question which the court addresses
itself is whether any useful purpose would be served by
requiring the personal attendance of the accused or the
progress of the trial is likely to be hampered on
account of his absence. In this case, an noticed above,
trial court declined the exemption application only on
the ground that petitioner is a rich lady, wife of film
star and can afford to travel from Bombay to Delhi on
each and every date of hearing. The court failed to
consider that it is bound to cause lot of hardships if
she is required to come all the way from Bombay to Delhi
on each and every date of hearing. The progress of
trial is not likely to be hampered when the petitioner
was represented by a lawyer who has full instructions;
whose power of attorney is on record; who has
undertaken not to seek adjournment because of absence of
the petitioner. The identity of petitioner is not
disputed. She has undertaken to appear as and when
required. Undoubtedly, a Magistrate granting exemption
from personal attendance is also empowered under
Sub-section (2) of Section 205 Cr.P.C. to withdraw such
privilege. In my considered view, the reasoning adopted
by the trial court while dismissing exemption
application of petitioner is at all not sustainable in
law.
7. For the foregoing reasons, petition is
allowed. Impugned order is set aside. Exemption from
personal appearance is granted to the petitioner during
the course of trial except for the special reason
recorded in writing trial court may order for appearance
of the petitioner for any particular date/dates.