R.C. Kathuria, J.
1. Arun B. Deshpande, petitioner seeks quashing of the order dated 8.1.2002 (Annexure P-6) passed by the Judicial Magistrate 1st Class, Abohar in Criminal Case No. 118-2719.4.1997, whereby prayer made by the petitioner seeking exemption from personal appearance during the trial of the case was declined.
2. In order to decide the controversy raised in this petition, a few facts need to be noticed. M/s, Vipin Oil Extraction (P) Ltd. through its Managing Director, Faquir Chand Bansal, resident of Gaudhula Road, Abohar, District Ferozepur, arrayed as respondent No. 1, had entered into transaction with M/s. Vizar Agro Chemicals Limited, arrayed as respondent No. 2. Arun B. Deshpande, petitioner was employed with respondent No. 2 at that time. Vishwas L. Bhosale and late Sanjay Solanki, Managing Director and Executive Director respectively of respondent No. 2 were controlling the functioning of the aforesaid company. The cheques issued by respondent No, 2 in favour of respondent No. 1 were dishonoured on account of insufficiency of funds. Consequently complaint was filed under Section 138 of the Negotiable Instruments Act, 1881, by respondent No. 1 against respondent No. 2 on 19.4.1997. As the petitioner was signatory of the cheques issued, he along with the Managing Director and the Executive Director of the Company was summoned to face prosecution in the aforesaid case vide order dated 16.7.1998. During the pendency of the complaint an agreement dated 22.5.1998 (Annexure P. 1) was entered into between M/s. Vizar Agro Chemicals through its Managing Director Vishwas Bhosale and Sanjay, Executive Director, first party, with the complainant as second party whereby it was agreed between them that payment of the legal debt amounting to Rs. 17.20 lacs shall be made in instalments by respondent No. 2 to respondent No. 1. During the pendency of the proceedings before the Court application dated 6.9.2001 was filed by Arun B. Deshpande under Section 205 read with Section 317 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') seeking permanent exemption from personal appearance before the Court in the proceedings pending against him. It was stated therein that as per directions of the Hon'ble Apex Court, he had appeared in the Court and after bail was granted to him he had furnished surety bond and it was observed by the Court in the order dated 23.4.2001 that in case the application for personal exemption was filed by the petitioner, the same would be considered and appropriate order would be passed thereon. Consequently, the application had been filed by him seeking exemption from personal appearance in which it had been stated that the petitioner is aged 64 years and his wife, who is suffering from ailment requires constant care by him. In addition, the petitioner is also suffering from disease of uncontrollable diabetes and he was hospitalised six days in June, 2001 and till date he had not recovered completely. He had also stated that because of litigation he had been rendered jobless and he being permanent resident of District Aurangabad located in the State of Maharashtra, which is at a distance of 1800 kms. from Abohar and it takes six days period of journey to join the Court with the result he has to incur financial burden of Rs. 5,000/- on each day of hearing. It was thus prayed that in view of the above noted circumstances, his prayer for exemption from personal appearance before the Court in the proceedings be accepted.
3. This application was resisted from the side of respondent No. 1 on the ground that conduct of the petitioner does not deserve the concession of exemption from personal appearance prayed for in the application because his presence had been secured through non-bailable warrants issued by the Court. Additional, it was stated that initially instead of puttingin appearance, the petitioner had challenged the order of the Trial Court and had approached Aurangabad Bench of the Bombay High Court by moving-Criminal Application No. 1801 of 1998 seeking cancellation of the non-bailable warrants issued against him and thus avoided appearance for a sufficiently long time. After his petition was dismissed by that Bench, the matter was taken by him to the Apex Court by way of S.L.P., which was allowed on 23.4.2001 and adirection was given to the petitioner-accused to put in appearance in Court and seek exemption from personal appearance from the said Court.
4. The learned trial Judge, after taking into account the respective stands of the parties found no merit in the application filed by the petitioner and dismissed the same as per order dated 8.1.2000. It is this order which has been assailed in the present petition.
5. Learned Counsel for the petitioner while challenging the order dated 8.1.2002 has contended before me that the Trial Judge, while rejecting the application of the petitioner was mainly influenced by the fact that the petitioner had tried to delay his appearance in the Court by seeking cancellation of non-bailable warrants issued against him before Aurangabad Bench of Bombay High Court and thereafter approached the Apex Court in this regard which should not have been taken as the basis to reject the legitimate grounds taken in the application seeking exemption. According to him not only the petitioner is suffering from uncontrollable diabetes but he has to look after his ailing wife also. The petitioner is also jobless is based at District Aurangabad which is 1800 kms. from Abohar and has to incur expenditure of Rs. 5,000/- on each hearing which takes six days of journey. In support of the stand taken he has placed reliance on Punjab Anand Industries Limited v. Asahi Video Pvt Ltd., 1999(1) RCR (Cr.) 601; Dr. Shyama Arora v. State of Haryana. 2000(1) RCR (Cr.) 318; U.P. Pollution Control Board v. Mohan Meakins Ltd. and Ors., I (2000) CCR 348=III (2000) SLT 162=2000(2) RCR (Cr.) 421, and Bhaskar Industries Limited v. Bhiwani Denim and Apparels Ltd., III (2001) CCR 208=VI (2001) SLT 120=2001 (4) RCR (Cr.) 137. In the above mentioned cases, the parameters for granting exemption has been laid down. It would be appropriate to refer to the observations made in M/s. Bhaskar Industries Limited v. Bhiwani Denim and Apparels Ltd. (supra), wherein while taking notice of the provisions of Sections 205(1), 251(1), 273 and 317 of the Code, it was observed in paras 17 to 19 as under :
'17. Thus, 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 further 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 lo 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 further progress of the proceedings including examination of the witnesses.
18. A question could legitimately be asked--what might happen if the Counselengaged by the accused (whose personal appearance is dispensed wilh does noi appear or that the Counsel does not co-operate in proceeding with the case? We may point out that the Legislature has taken care for such eventualities. Section 205(2} says 'hat the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.
19. The position, therefore, bogs down to this. It is within the powers of the 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 thecomparative 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 of the accused would only be 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. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised Counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.'
6. Taking into account the position of Jaw explained in the above mentioned cases and the circumstances brought forth on record of this case, I find merit in the stand taken on behalf of the petitioner. Undisputedly the petitioner has been residing in District Aurangabad which is at a distance of 1800 kms. from Abohar. He is also aged 64 years and is presently without any job and it takes about six days journey period to attend Court on every date of hearing at the expenses stated by him. The petitioner shall be granted exemption from personal appearance subject to his furnishing an undertaking before the Trial Court that his Counsel shall be present on his behalf on the date when the case is called and evidence is recorded and that he would not dispute his identity as an accused in this case and would be present in the Court as and when his presence is imperatively needed.
7. With the above directions, the petition is allowed and the impugned order is set aside and the Court is directed to proceed in accordance with law after necessary undertaking is furnished by the petitioner-accused.