JUDGMENT
D.K. Sinha, J.
1. The present Cr. Revision is directed against the order impugned dated 3.8.2007 passed by Shri Prabhkar Singh, Judicial Magistrate, Bermo at Tenughat in Gomia P.S. Case No. 10 of 2007 whereby and whereunder the petition filed on behalf of the petitioner under Section 205 of the Code of Criminal Procedure was rejected.
2. The allegation against the petitioner Sanjay Kumar Choubey and another Bayash Kumar was that they being the proprietor and Manager respectively of M/s Urmila Service Station (Petrol Pump), Kathara raised huge amount from different persons including Rs. 3.5 lakhs from the informant and embezzled the same. The amount was not returned to the informant in spite of his repeated request and hence the police case against both of them.
3. The petitioner had preferred a petition under Section 205 Cr.P.C. on the ground that the police after investigation had filed final form exonerating his criminal liability but the A.C.J.M.,. Bermo at Tenughat took cognizance of the offence against the petitioner and his Manager on the basis of the materials in paragraph No. 2,7,8 & 9 of the case diary.
4. The main contention of the petition under Section 205 was that the petitioner was a busy business man, registered as class-1 contractor and was the member of Central Committee Political Party. It was difficult for him to attend the Court physically on the every date of hearing and he undertook not to dispute his identity or raise any sort of objection during recording of prosecution evidence in his absence. He further undertook to be represented through his lawyer and assured to remain present in the Court physically as and when required.
5. Mr. V.K. Prasad, learned A.P.P. opposed the contention advanced on behalf of the petitioner and submitted that the petitioner was an accused for the offence under Section 420/406 I.P.C. for alleged embezzlement of huge amount of different persons. He has not even obtained bail and that his anticipatory bail was rejected earlier by this Court.
6. Under the circumstances, no ground is made out for consideration of the petition filed under Section 205 Cr.P.C. for dispensation of the personal appearance of the petitioner in the Trial Court.
7. Having regard to the facts and circumstances of the case, I find that the Hon’ble Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim @ Apparels Ltd. and Ors. held as under:
Sections 251 and 205(1) make it clear that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate Is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused ( provided he is represented by a counsel in that case) even for proceeding with the future steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the farther progress of the proceedings including examination of the witnesses.
8. Similarly a Bench of this Court in Dr. (Mrs.) Karuna Jha v. State of Jharkhand and Anr. reported in 2005(1) East Cr. C. 176 (Jhr.) held as under:
In the case of Ram Harsh Das v. State of Bihar reported in 1998(1) All P.L.R. 495, a Division Bench of the Patna High Court while appreciating the provision observed that the Magistrate can exercise powers conferred upon him under Section 205 Cr.P.C. even in warrant cases, provided he had issued summons instead of issuing the warrant The Court further observed that in a case where a warrant has been issued at the first instance, the power under Section 205 Cr.P.C. cannot be exercised. The court also held that there is no hard and fast rule which can be laid down for deciding the question of grant or refusal of prayer for dispensing the personal attendance.
9. Admittedly., no hard and last rule has been laid down for deciding the question of grant or refusal of prayer for dispensing the personal attendance of an accused in a summons case or warrant case. But in the instant case the petitioner has not even obtained his bail though the cognizance of the offence has been taken against the petitioner and another under Sections 420/406/34 I.P.C. on 30.05.2007.
10. I further find that non-bailable warrant of arrest has been issued against the petitioner securing his production in the Court through the police agency, as he did not appear in spite of the summons issued to him, An accused be dispensed from his personal appearance in the Court only on the ground that he is a busy business man, a registered class-l contractor and the member of Central Committee of a political party under the name and style Jharkhand Vikash Morcha.
11 In the circumstances, I do not find merit in the present Revision Petition so as to call for interference in the order impugned and hence this Cr. Revision is dismissed.