VINOD KUMAR OHAMARIA v. STATE OF BIHAR — 1976 DIGILAW 83 (PAT)

JUDGMENT : Birendra Pd. Sinha,J. These three applications have been heard together. In all the three cases the facts are common. The petitioner's case is that he is the managing director of the Katihar Jute Mills (in the State of Bihar) and resides in Calcutta. Three petitions of complaint were filed against him for violation of certain provisions of the Additional Emoluments (Compulsory Deposit) Scheme, 1974, read with Sections 6(2) (b), 23 and 14 of the Additional Emoluments (Compulsory Deposit) Act, 1974, by Shri V. B. Singh. Enforcement Officer in the office of the Regional Provident Fund Commissioner, Bihar, on the 11th. September 1975, before the Chief Judicial Magistrate; Patna, giving rise to three cases. viz., Nos. 950(M)/75, 951 (M)/75 and 952 (M)/75. Criminal Miscel1aneous Nos. 433/76, 434/76 and 435/76 arise out of the aforementioned three cases, respectively. The period for which the additional dearness allowances deducted from the employees were not paid in the manner prescribed under the Additional Emoluments (Compulsory Deposit) Act are different in the three cases. It is, however, not necessary to state all these facts in greater detail. 2. On receipt of the complaints, the Chief Judicial Magistrate took cognizance under paragraph 7 of the Additional Emoluments (Compulsory Deposit) Scheme, 1974, read with Sections 6 (2) (b), 23 and 14 of the Additional Emoluments (Compulsory Deposit) Act, 1974, on the 11th September, 1975, in all the three cases and issued summonses fixing the 25th October, 1975, for appearance of the accused. The petitioner did not appear on the 25th October, 1975. A petition appears to have been filed on behalf of the complainant to issue a warrant of arrest against the petitioner but, as the Service report had not come by then, the Court below fixed the 29th. November, 1975, as the next date in the case. On the 29th, November, 1975, again the petitioner did not appear. Another petition was filed on behalf of the complainant to issue a non-bailable warrant of arrest against the petitioner. The court below issued a bailable warrant of arrest against the petitioner fixing the 20th December, 1975. On the 20th, December, 1975, the petitioner again did not appear in person but a petition seems to have been filed on his behalf to recall the warrant of arrest and fix a date after a month for his appearance in Court. The court below issued a bailable warrant of arrest against the petitioner fixing the 20th December, 1975. On the 20th, December, 1975, the petitioner again did not appear in person but a petition seems to have been filed on his behalf to recall the warrant of arrest and fix a date after a month for his appearance in Court. It was stated in the said petition that his non-appearance on the 29th November, 1975, was not intentional rather it was beyond his power to reach the Court. The Court below, on his request, fixed the 31st. January, 1976, for appearance of the petitioner in Court. From the ORDER :dated the 20th. December, 1975, I find that the petitioner was directed to be present in person on the next date fixed. On the next date, i.e., 31.1.76 the petitioner filed a petition under Section 205. Code of Criminal Procedure, in all these three cases stating, inter alia, that he had nothing to do with the day to day administration of the mill at Katihar and as he was permanently residing at Calcutta. he was not directly responsible for the commission of the alleged offences. It was further stated that the petitioner came to Patna to present himself but all of a sudden fell ill and had to be treated on the 30th. January, 1976 and was advised complete rest for a fortnight. A prayer was made for permission to be represented through a lawyer in all the three cases. The court below recorded the following ORDER : “From perusal of the record it appears that processes have already been ORDER :ed to be issued against the petitioner for compelling his attendance in court and that the petition u/s 205 Cr. P. C. is not maintainable at this stage. The petition is accordingly rejected. It further appears that by ORDER :s dated 29-11-75 W/A bailable for Rs. 1000/-was ORDER :ed to be issued against the petitioner accused but the same has not been complied with by the office. Let the ORDER :be complied with at once fixing 23-2-76 for E/R". It is this ORDER :which is the subject matter of challenge in all these three cases. 3. It was contended by Shri S. B. Sanyal, learned counsel appearing on behalf of the petitioner in all these cases. that the court below was wrong in saying that the petition under Section 205. It is this ORDER :which is the subject matter of challenge in all these three cases. 3. It was contended by Shri S. B. Sanyal, learned counsel appearing on behalf of the petitioner in all these cases. that the court below was wrong in saying that the petition under Section 205. Code of Criminal Procedure, was not maintainable at this stage. Learned counsel submitted that exemption can be allowed even in a case where processes had been issued in the first instance including warrant of arrest. According to learned counsel, the provisions contained in Section 205 and Section 540A of the old Code (Section 317 of the new Code) were co-extensive for grant of exemption and merely because warrant had been issued. the Court did not become functus officio to grant the said relief. Reliance in this connection was placed on a large number of decisions, viz., (1) Abdul Himid V. King Emperor (A.I. R. 1924 Patna 46); (2) Subba Rao V. the King (A. I. R. 1951 Patna 405); (3) In re Ummal Hasanath (A. I. R. 1947 Madras 433); (4) Sultan Singh Jain V. The State (A. I. R. 1951 Allahabad 864); (5) Indra Devi V. Sarnagat Singh (A.I.R0. 1955 Punjab 81); (6) Joy Singh Rajput V. Bachharaj Dugar (A. I. R. 1957 Assam 148); (7) Kursedji Wookerji Bananji V. State of Mysore (A. I. R. 1954 Mysore 181); (8) Dhiria V. Jainarain (A. I. R. 1970 Rajasthan 102) and an unreported decision of this Court in (9) Criminal Revision no. 172 of 1964 (Sukhdeo Prasad Singh V. Gouri Shankar Modi) decided on the 13th of April, 1964. 4. In the case of (1) Abdul Hamid (1924 Patna 46) the accused had been arrested without or after the issue of warrant of arrest and himself had not made any prayer to be represented by a pleader. In the case of (2) Subba Rao (1951 Patna 405), it appears that an observation was made that the provisions of Section 205 were applicable to a case where summons and not warrant of arrest was issued in the first instance. In the Madras case (1947 Madras 433) it was held that Section 205 of the Code was applicable to cases in which the Magistrate had issued summons in the first instance and not where the accused had been arrested without or after the issue of the warrant. In the Madras case (1947 Madras 433) it was held that Section 205 of the Code was applicable to cases in which the Magistrate had issued summons in the first instance and not where the accused had been arrested without or after the issue of the warrant. It appears that in that' case the accused had been arrested without a warrant. In the case of Indra Devi (1951 Allahabad 864) it was held that Section 205 of the Code applied to a case where summons had been issued by a Magistrate under Section 204 of the Code. In the Punjab case also (1955 Punjab 81) a similar proposition was laid down. In 1957 Assam 148 (Joy Singh Rajput's case) it was further held that Section 205 of the Code does not preclude the Court from' granting exemption to the accused of his personal appearance merely because a warrant had been issued in the first instance. In the Mysore case (1954 Mysore 181) it was held that Section 205 is not exhaustive of the conditions under which exemption can be granted to an accused from appearance In Court and absence of summons in the first instance is not an impediment from exemption being allowed. The issue of summons or warrant to the accused in the first instance is not the criterion. It was further held that it would be unreasonable to reject such applications only because the summons was not issued to the accused. Exemption had been refused in that case on the ground that warrant, and not summons, had been issued to the accused for his appearance. It was further held in that case that it was possible to exercise the implied power under Section 353 to dispose with the attendance of an accused and without giving any final decision wish regard to the scope of Section 205 of the Code the court below was directed to pass an appropriate ORDER :on consideration of the ground on which exception was sought. The facts of the case is (10) Sarsibala Dawan V. State (1962 B. L. J. R. 20) were these. The facts of the case is (10) Sarsibala Dawan V. State (1962 B. L. J. R. 20) were these. A prosecution report was sent by the Officer-in-charge of the police-station to the Sub-divisional Magistrate against the accused persons stating, inter alia, that in spite of a prohibitory ORDER :the accused persons had taken out a procession in violation of Section 30 of the Police Act causing annoyance to the general public. The accused per- sons who had been arrested were produced before the Magistrate who took cognizance of the offence the same day. One of the female accused Sarsibala had suddenly fallen ill and could not appear personally in Court but she was represented by another co-accused who claimed to represent her. All the accused persons pleaded guilty. The statements of Sarsibala under Section 342 of the Code was also recorded on the statement of a co-accused. All the accused persons were found guilty and accordingly convicted. A reference was made to this Court and in that context the scope of Section 205 came up for consideration. It was observed that Section 205 applied only to cases in which the Magistrate had issued summons in the first instance at the commencement of the proceedings before him. It deals with the initial appearance of the accused before the Magistrate. It was further observed that Section 353 or Section 540A of the Code (old) deals with the presence of the accused during the trial of the case or during inquiry. This case is also not a direct authority for the points urged by Shri SanyaI. In the unreported case (Criminal Revision no. 172 of 1964) it appears that the Sub-divisional Magistrate took cognizance, summoned the accused and transferred the file to the Munsif Magistrate for favour of disposal. When the record was received in the court of the Munsif Magistrate, he issued a warrant of arrest fixing 7.10.63 for appearance of the accused. The execution report 9f the warrant of arrest was not received and another date was fixed. On the next date also the execution report was not received. After the case was adjourned on several occasions, the Munsif Magistrate issued a non-bailable warrant of arrest against the accused persons. It was thereafter that a petition was filed on behalf of the accused persons for dispensing with their personal attendance and allowing them to be represented by a lawyer. After the case was adjourned on several occasions, the Munsif Magistrate issued a non-bailable warrant of arrest against the accused persons. It was thereafter that a petition was filed on behalf of the accused persons for dispensing with their personal attendance and allowing them to be represented by a lawyer. The application was not disposed of on that date. Ultimately, after hearing the parties, the Munsif Magistrate allowed the accused persons to be represented through an Advocate. It was contended in that case that the learned Munsif Magistrate having issued the warrant of arrest against the accused persons had no jurisdiction to dispense with the personal attendance of the accused persons under Section 205 of the Code. S. N. P. Singh, J., (as he then was) observed that there was no doubt that the Munsif Magistrate issued warrants of arrest against the accused persons but had subsequently stayed the execution of the processes issued against them. It was further observed that there was nothing to show that a fresh ORDER :for the issue of warrant of arrest against the accused persons was passed. It was held that it was within the competence of the Munsif Magistrate to withdraw the warrant of arrest issued against the opposite party and the effect of the ORDER :granting exemption to the accused persons was that the warrant of arrest that had been issued was withdrawn. It was further held that the matter would have been different if any of the accused persons had been arrested before the ORDER :granting exemption from personal appearance was passed. In this case the trial had commenced when' the Munsif Magistrate had passed the impugned ORDER :. After taking cognizance the Sub-divisional Magistrate had transferred the case to him for trial and whatever ORDER :the Munsif Magistrate passed, he passed as a trial Court. Accordingly, the provisions of -Section 540A were applicable even at the initial stage of the trial. In this context the following finding was recorded : "I am, therefore, of the opinion that the Magistrate was competent to pass an ORDER :dispensing with the personal appearance of the accused under the provisions of Section 540A of the Code, even if it be held that the Magistrate was not competent to pass an ORDER :under Section 205 of the Code". 5. 5. 1n the instant case, it would appear that on the 11th September, 1975, cognizance was taken on receipt of the complaint and summons were issued for appearance of the accused. On the next date, the position remained unchanged as the service return had not been received although a petition was filed for issue of warrant of arrest. On the 29th November, 1957, warrant of arrest was issued fixing the 20th December, 1975. On the 20th December., 1975, a petition appears to have been filed on behalf of the accused to recall the ORDER :issuing warrant of arrest and for fixing a date of appearance of the accused in Court. on this application, 31st of January, 1976, was fixed for the appearance of the accused in person. There is no specific ORDER :recalling the ORDER :issuing the warrant of arrest. It could be argued that by fixing the 31st January, 1976, for personal appearance of the accused, the court below had impliedly withdrawn the ORDER :for issue of warrant of arrest; but on the next date, i. e., 31.1.76, while rejecting the application for exemption from personal appearance, the court below stated that the ORDER :dated the 29th November, 1975, regarding warrant of arrest be complied with at once. This means that the ORDER :for issue of warrant of arrest had not been withdrawn or cancelled. None of the cases cited above has dealt with a similar situation. I also do not find that in any of the cases mentioned above a broad proposition has been laid down that a Magistrate taking cognizance has the power to grant exemption to the accused persons even though warrant of arrest has been issued for compelling their attendance. It is relevant to mention here that summons had been issued in the first instance but, having failed to secure the appearance of the accused person, the Court had to issue warrant of arrest. As stated above, in the case of Sukhdeo Prasad Singh (Criminal Revision No. 172 of 1964), supra, this Court had found that the Magistrate was competent to pass an ORDER :dispensing with the personal attendance under Section 540A of the Code. As stated above, in the case of Sukhdeo Prasad Singh (Criminal Revision No. 172 of 1964), supra, this Court had found that the Magistrate was competent to pass an ORDER :dispensing with the personal attendance under Section 540A of the Code. In view of its earlier finding that the trial had commenced, it was not finally decided that the Magistrate had the same power under Section 205 of the Code in the facts and circumstances of that case; even though impliedly it was held that the Magistrate was not competent to pass such an ORDER :under Section 205 of the Code in a case where warrant of arrest has been issued. In the case before me the trial has not yet commenced and, therefore there is no question of the application of the provisions of Section 540A of the old Code or Section 317 of the new Code. Section 205 reads as under :- "205. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner here-in-before provided." Thus, it is abundantly clear from the Section itself that whenever a Magistrate issues summons, he may dispense with the personal attendance of the accused if he sees reason to do so. Obviously, therefore, in a case where a warrant has been issued, the Magistrate cannot exercise his discretion under Section 205 of the Code. In the present cases, it would appear that the court below had issued summons in the first instance in the exercise of its powers under Section 204 of the Code, but, later, a warrant was issued for securing the attendance of the accused petitioner. That ORDER :does not seem to have been cankered or withdrawn. In almost all the decisions discussed above, it has been laid down that this discretion can be exercised by the Magistrate only in a case where summons has been issued and not in a case where a warrant has also been issued. This principle seems to have been founded on good reasons. In almost all the decisions discussed above, it has been laid down that this discretion can be exercised by the Magistrate only in a case where summons has been issued and not in a case where a warrant has also been issued. This principle seems to have been founded on good reasons. (Generally, in a case where summons has been issued for the attendance of an accused, it becomes necessary to issue a warrant of arrest only when the accused refuses to appear in answer to the summons. An accused can well avoid this situation by either appearing in Court or claiming an exemption from appearance under Section 205 of the Code, before the Magistrate issues a warrant. It must, therefore, be held that the scope and extent of Section 205 of the Code is limited to the stage of commencement of the proceedings and applies to a summons issued by a Magistrate. No doubt, it was held in the Mysore case (1954 Mysore 181) that the issue of summons in the first instance is not the criterion and that apart from Section 205, the Court has implied power to exempt under Section 353. In the Mysore case the accused persons bad applied for exemption at the stage of the trial and their Lordships were considering the case in that right. The reference in Section 353 to the power of a trial Court to dispense with the personal attendance of an accused clearly implied that the trial Court has such a power of granting exemption. So far Section 540A (old), 317 (new) is concerned, it was enacted to meet a special type of case and under certain special circumstances. It does not lay down the whole law as regards the power of a Magistrate to grant exemption. It-applies to a case where trial has begun. I, therefore, do not find any substance in the argument advanced by learned counsel in support of these applications. 6. In the result, all three applications are dismissed. Applications dismissed.