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Learned Senior counsel for the petitioner would contend that the Court can dispense with the appearance during trial or enquiry while permitting the accused to be represented by his authorized advocate by exercising power under Section 205 of Cr.P.C., and strange argument is advanced in addition to the above argument that instead of filing petition under Section 317 of Cr.P.C., the petitioner filed petition under Section 205 of Cr.P.C. Therefore, quoting wrong provision of law is not a ground to dismiss the petition, if the petitioner is entitled to claim relief in a petition filed under Section 205 of Cr.P.C. But this contention cannot be accepted for the simple reason that there is lot of distinction between Section 317 of Cr.P.C. and Section 205 of Cr.P.C. Under Section 317 of Cr.P.C., the absence of the petitioner can be condoned either during trial or enquiry, but power under Section 205 of Cr.P.C. can be exercised only to dispense with the appearance of the petitioner during trial/enquiry by the Judge/Magistrate if he is represented by Counsel duly authorized by the petitioner. In a petition filed under Section 317 of Cr.P.C. no such advocate need to represent the accused. The power conferred on the Court under Section 205 of Cr.P.C. is in the nature of special vakalat to represent the petitioner/accused and the Counsel can answer to the questions put to him including his examination, so also examination under Section 313 of Cr.P.C., whereas under Section 317 of Cr.P.C. no such permission can be granted except to condone the absence on particular date, during MSM,J Crl.P_3880_2016 trial or enquiry. Therefore, the petition filed before the trial Court virtually a petition under Section 205 of Cr.P.C. to represent the petitioner by Special Vakalat holder Bharadwaj Reddy on all dates of adjournments during trial or enquiry. Therefore, the argument advanced by Senior Counsel is without any force. On that ground, the petition cannot be allowed treating the same as petition filed under Section 317 of Cr.P.C.

Undoubtedly, it is the obligation of the petitioner to participate in business activities being the director of various companies. But, that itself is not a ground to exempt the petitioner from his appearance before the Court, as he is required to appear before the Court on one day in a week i.e. on Friday, as per the allegations made in the petitions.

The learned Special Public Prosecutor for C.B.I mainly contended that Section 205 Cr.P.C is applicable only to summons cases, but not to warrant cases and thereby, the petitioner is disentitled to claim exemption from appearing before the Court. On the other hand, learned Senior Counsel Sri D.Prakash Reddy contended that Section 205 Cr.P.C applies both to summons and warrant cases and no distinction shall be drawn, to apply the procedure under Section 205 Cr.P.C.

MSM,J Crl.P_3880_2016 No doubt, as seen from the language used in Section 205(1) Cr.P.C, it is clear that whenever a Magistrate issues summons and if he finds reasons, the Court can exempt the personal attendance of the accused and permit him to appear by his pleader. Clause (2) of Section 205 Cr.P.C says that the Magistrate inquiring into or trying the case direct the personal attendance of the accused and if necessary, enforce such attendance in the manner prescribed, in his discretion, at any stage of the proceedings. A bare look at Clause (2) of Section 205 Cr.P.C, it appears that it is applicable to summons procedure, but this is clarified by catena of decisions rendered by Apex Court this High Court and other High Courts.

The long line of perspective pronouncements of Apex Court, this Court and other High Courts made clear that the power of Magistrate under Section 205 Cr.P.C is purely discretionary in nature and such power has to be exercised judiciously and when the Magistrate is alone competent to exercise his judicial discretion recording specific reasons for deviating the normal procedure, such power has to be exercised sparingly under Section 205 Cr.P.C.

In T.G.N. Kumar case (referred supra), the Supreme Court held that on the plain language of Section 317 of Cr.P.C., it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 317 of the Code as well. Therefore, on analysis of entire law laid down by various Courts, the discretion is totally vested with the Magistrate to dispense with the appearance of the accused and the Court must also see that such exemption shall not be misused. When the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interest of justice, he may exercise such discretion under Section 205 of Cr.P.C judiciously and he must also take necessary precautions enumerated that MSM,J Crl.P_3880_2016 such exemption shall not be misused and protract the proceedings without any reason.