JUDGMENT 1. A complaint has been lodged by respondent no. 2 before the Addl. Chief Judicial Magistrate No 1 Jodhpur on 18-9-93, Summons were issued to the petitioners All the accused named in the complaint are public servants employed in connection with affairs of the State in various departments. two applications were moved on behalf of the petitioners, one under section 197 Criminal Procedure Code that no cognizance could be taken against them for want of the previous sanction of the State Govt. and another application was moved under section 205 Criminal Procedure Code seeking exemption from personal attendance specifying administrative difficulties on account of discharge of public duties at different places, until further orders by the court. By the impugned order dated 18-9-93 the Addl. Chief Judicial Magistrate no. 1 Jodhpur has rejected application filed under section 205 Criminal Procedure Code. The application moved under section 197 Criminal Procedure Code has been kept pending. 2. The order dated 18.9 93 has been challenged on the ground that It has not been made after due application of mind to the relevent facts and also founded on misconceived presumption that identifications of the accused have yet to be established whereas from the complaint as well as statements of complainant and outer witnesses recorded by the learned Addl. Chief Judicial Magistrate it is apparent that all the petitioners have been named with their designations without any expression of doubt about their identity. 3. Learned counsel for the respondent no. 2 has vehemently urged that ground of exemption from personal attendance is not a matter of right and rests with the discretion of the Magistrate issuing summons. 4. He has exercised his discretion against petitioners and exercise of such discretion cannot be considered abuse of the process of the court. His principal contention rests on the premise that attendance of accused in the court during trial is normal rule and exemption from personal attendance is exception. 5. Having considered the rival contentions raised by the learned counsel for the parties and perused the impugned order and statements of witnesses I am of the opinion that this petition deserves to be accepted. 6. It is true that exemption from personal attendance is not a matter of right. It is also true that a Magistrate has discretion of permitting accused to remain absent during the proceedings before him. 6. It is true that exemption from personal attendance is not a matter of right. It is also true that a Magistrate has discretion of permitting accused to remain absent during the proceedings before him. But the discretion of Magistrate is judicious one and inhibited by the consideration which are germane to exercise of such discretion. The discretion cannot be exercised on extraneous consideration or by consideration which are not relevant for the purpose for which provision has been made From perusing the order it appears that the Learned Addl. Chief Judicial Magistrate was swayed away with the contention that some of the accused are holding high position and they are avoiding the attendance in the court by making it an issue of prestige on account of their official status as contended by the complainant. This presumption, in the circumstances, appears to me to be unfounded. 7. The complainant's allegation in that regard are more likely to be tainted with personal prejudice against the accused. However the Court is not to wear the complaints glasses while considering the application and decide the same without taking into consideration the attending circumstances, the nature of cause pleaded and the stage at which the proceeding is pending and above all the requirement of personal attendance at particular stage and the fact that all the accused are undisputedly public servants and their application under section 197 Criminal Procedure Code against taking of cognizance was yet to be decided. Ordinarily the law protects the public servant from proceedings taken by him in discharge of their official duties. Law even prohibits taking of cognizance against such public servant in respect of acts done or purported to have been done in discharging of their official duties, without previous sanction of the State. 8. All these facts were relevant consideration for deciding the application under section 205 Criminal Procedure Code in the present case. There could not be any presumption merely because an application for exemption from personal attendance under section 205 Criminal Procedure Code has been moved that the application is fraught with prestige issue of avoiding the process of court. 8. All these facts were relevant consideration for deciding the application under section 205 Criminal Procedure Code in the present case. There could not be any presumption merely because an application for exemption from personal attendance under section 205 Criminal Procedure Code has been moved that the application is fraught with prestige issue of avoiding the process of court. It is the right of any accused to move an application to secure benefit of any provision of law To raise an adverse presumption because an application has been moved to take benefit of any provision and reject the same on that ground will result in the stultifying the very purpose of law. No such presumption could be raised because of the status of applicants either. Raising of such presumption on the ground of status of the accused. without anything more betrays that court too is making it only an issue of prestige. That could hardly be the admissible approach of courts entrusted with the task of deciding the proceedings before it without favour or bias. but with judicious consideration of the matter with open mind. 9. Regarding the nature of power under section 205 Criminal Procedure Code and principles guiding exercise of such power will be relevant to refer to following observation of a Bench Decision of Allahabad High Court in Bhagwandas and Ors. v. State through Badri Prasad, AIR 1953 All 630 ) . "The law enjoins that an accused should be present during the course of the trial more to safeguard his interests than to Cause him inconvenience. In a case where the accused, himself applies to the Court to be exempted from personal appearance, then a Court should grant the request unless it is of opinion that in the interest of justice it is necessary that the accused should be present throughout the course of the trial, or unless there are some other good reasons for directing the presence of the accused throughout the course of the trial " 10. The following observations of Delhi High Court can also be usefully quoted; 1984 (2) page 625 (Nihal Singh and Ors. The following observations of Delhi High Court can also be usefully quoted; 1984 (2) page 625 (Nihal Singh and Ors. v. Arjun Das) "There can be no manner of doubt that the courts must exercise the discretion vesting in them with a broad approach in the back-drop of the manifold demands of a welfare society and they must not stultify these beneficient provisions by an out-moded approach that an accused must face the consequences of his involvement in a criminal case by appearing in person irrespective of his placement in life, other preoccupations and obligations which he may have to discharge". 11. From the perusal of the order it is clear that details of administrative difficulties of the accused persons who are engaged in discharging public duties at different places of the State was pleaded as a cause for exemption from personal attendance. The order does not disclose whether the learned Judge has taken into consideration whether those administrative reasons pleaded are sufficient to claim exemption. Within the ambit of such consideration is also included inquiry into the fact whether during the long course of trial the personal attendance of such public servant is likely to affect the public interest if so to what extent ,due to interruption in discharge of public duties by these officers, vis-vis gravity of offence. It was also relevant in the present case to have considered the application of the petitioners before proceeding further whether the provisions of section 197 Criminal Procedure Code are applicable to present case and protection thereunder was available to the accused persons. If that were so, no cognizance at all can be taken against accused person until such sanction is accorded. Therefore, in my opinion. the order under consideration has not been passed after addressing to the relevant questions necessary for deciding the issue of exempting the accused from appearance. 12. The order cannot be sustained on this ground alone and it is hereby set aside. The Learned Addl. Chief Judicial Magistrate is directed to first consider the application under section 197 Criminal Procedure Code until application under section 197 Criminal Procedure Code is decided the petitioners shall remain exempted from personal appearance. However this is without prejudice to the power of Addl. The Learned Addl. Chief Judicial Magistrate is directed to first consider the application under section 197 Criminal Procedure Code until application under section 197 Criminal Procedure Code is decided the petitioners shall remain exempted from personal appearance. However this is without prejudice to the power of Addl. Chief Judicial Magistrate to call upon the petitioners under section 205(2) during inquiry into application under section 197 Criminal Procedure Code which shall be disposed of by the Addl. Chief Judicial Magistrate as far as possible with in a period of two months. The question of further exemption from personal attendance of the accused after decision of application under section 197 Criminal Procedure Code is decided, will be decided, only after such decision, afresh in accordance with law and keeping in view the observations made above.Petition allowed. *******