PROVENDU NARAYAN SINHA, J. - (1.) This revisional application is directed against order dated November 6, 2003, 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 under Section 205 of the Criminal Procedure Code.
(2.) Heard learned advocate for the petitioner as well as learned advocate for the State. It appears that the learned Magistrate by order, dated August 25, 2003 took cognizance of the offence under Section 85(a)(i)(a) of the E.S.I. Act and issued process against the petitioner and others. On November 6, 2003 an application under Section 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.
(3.) I am of the opinion that in case of this nature, the accused can be permitted to be represented under Section 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 others reported in AIR 2001 SC 3625 : 2001 (7) SCC 401. I am of the opinion that in this case the accused petitioner may be permitted to be represented under Section 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.;