D.K.SINHA, J. - (1.) THE petitioners have preferred the petition under Section 482 of the Code of Criminal Procedure with a prayer to set aside part of the order impugned dated 26.2.2006, passed by the Judicial Magistrate in T.R. Case No. 1059 of 2006, presently pending in the Court of Sri Manish Kumar, Judicial Magistrate, 1st Class, Bermo at Tenughat whereby and whereunder the petitioner filed on behalf of the petitioners under Section 205(1) of the Code of Criminal Procedure for dispensation of their personal appearance was rejected arising out of Gomia P.S. No. 20 of 2002.
(2.) THE brief fact of the case in that on 14.2.2002, the Sub - Divisional Officer, Bermo at Tenguhat examined the Kathara Coal Washery and found that good coals were being sold with rejected one treating it as the rejected coal and by the order of the Deputy Commissioner the sale was stopped. An enquiry was made, but in the meantime, the Sub -Divisional Officer gathered that the evidence of such mixture of good as well as rejected coals were being removed by dozering the dump of the said coal. The matter was again enquired into and it was found true. On the behest of Sub -Divisional Officer and on presentation of written report, the present case was instituted for the offence under Sections 406/467/468/409/420/201/120 -B of the Indian Penal Code against certain persons and not the petitioners. The police after investigation submitted charge -sheet against the petitioners including one Sheo Kumar Mishra for the offence under Sections 406/409/420/511/120 -B of the Indian Penal Code. Accordingly, the cognizance of the offence was taken in the aforesaid sections by discharging the dozer owner and one N.K. Singh, the then General Manager of the said Washery, though they were named in the First Information Report. The learned Counsel submitted that the petitioners are highly placed officers and that their personal attendance would affect the business of their offices and that it would not call for prejudice to the prosecution If their petition under Section 205 of the Code of Criminal Procedure would have been allowed. The petition was rejected by the order impugned basically on the ground that cognizance was taken by the Additional Chief Judicial Magistrate of the offence against the petitioners and that the allegations were of serious nature. It was also stated that the petitioners though were highly placed officers but on such ground their personal attendance cannot be dispensed with.
(3.) LEARNED Counsel appearing on behalf of the petitioners submitted that there was no material available in course of investigation against the petitioners by the CID, but observation of the Superintendent of Police, CID based upon speculation that their connivance in the alleged offence cannot be ignored may not be ground for their implication in the alleged offence. Petitioners were arrested by the Investigating Officer on 6.11.2004, but were released on bail under Section 169 of the Code of Criminal Procedure by the police for want of sufficient evidence. Advancing his argument learned Counsel submitted that since there was no sufficient material against the petitioners and they were let off on the police bail and that they were holding responsible posts in different capacity, their prayer for dispensation from their personal attendance in the Court may be considered with the permission to be represented through their Lawyer in the trial Court.;