Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 756 (PAT)

Prem Agrawal v. State Of Bihar

2002-07-17

R.S.GARG

body2002
Judgment 1. The brief facts for disposal of this petition are that the applicant No.2. Dr. Manwendra Kumar filed a complaint vide Complaint Case No. 1786 (c)/2001 before the learned Chief Judicial Magistrate. Patna, inter alia, pleading that the complainant is a Member of the Indian Medical Association (in short the IMAJ. the present applicant Dr. Prem Agrawal was working as Secretary General for the year 1999-2000. In the year 2000 on behalf of the IMA he arranged a function called ACADIMA-2000 at Delhi. The entry fee and representative fee was fixed; Dr. Prem Agrawal was authorised to collect the funds and spend the same in accordance with the requirement. The allegations are that Dr. Prem Agrawal collected almost about One crore rupees and did not account for the same. After completion of the event a Fact. Finding Committee was constituted which found that Dr. Prem Agrawal had misappropriated a sum of Rs. 40 lacs etc. The learned Chief Judicial Magistrate took cognizance of the complaint and transferred the case to the court of Sri. P.N. Sharma. Judicial Magistrate 1 st Class. Patna. 2. The complainant and his witnesses were examined before the transferee court. After hearing the party the learned Magistrate came to the conclusion that the complaint was devoid of merits no offence appears to have been committed and accordingly he dismissed the complaint on 3.12.2001. Being aggrieved by the said dismissal the complainant took the matter to the Sessions Court in Criminal Revision No. 945/2001. The matter was heard by the learned Sessions Judge. Patna who in the exparte proceedings set aside the order passed by the learned Magistrate 1st Class and remitted the matter to the trial Court with the direction that the Magistrate shall proceed in the matter in accordance with law, in the matter of putting the accused on trial. It appears that thereafter the Magistrate feeling himself bound by the orders passed in the Criminal Revision ordered issuance of summons against the present applicant. It appears from the records that an application was made by the present applicant under Sec. 205 of the Code of Criminal Procedure seeking exemption from personal appearance. The grounds on which the application was projected were that the applicant is a renowned Doctor and he himself had undergone an operation in the month of February. It appears from the records that an application was made by the present applicant under Sec. 205 of the Code of Criminal Procedure seeking exemption from personal appearance. The grounds on which the application was projected were that the applicant is a renowned Doctor and he himself had undergone an operation in the month of February. 2002 and even in absence of the accused the evidence can be recorded the trial can be continued therefore the presence of the accused petitioner be dispensed with. The application was opposed by the original complainant, who placing reliance upon the judgment of this Court Ram Harsh Das V/s. State of Bihar and others, submitted before the trial court that the applicant was not entitled to exemption. After hearing both the parties the learned trial court directed that the applicant should appear before the trial Court within five days and if he does not appear then the Court shall issue non-bailable warrant of arrest to secure attendance of the applicant. On 19.4.1992 itself an application for grant of time was submitted so that the order passed by the court below may be challenged. The applicant thereafter filed this petition on 24.4.2002. 3. Learned counsel for the applicant submitted that Sec. 205 of the Code of Criminal Procedure would apply with full force and as the accused is neither disputing his identity nor is making any further submission that evidence cannot be recorded in his absence the application should have been allowed. It is further contended that the reliance placed by the learned court below on the judgment in the matter of Ram Harsh Das (supra) was misplaced. It is contended that Sec. 205 of the Code though gives a discretion to the learned Magistrate but in fact it provides a right in favour of the accused to make an application and seek exemption from the personal attendance. 4. Contending contrary to the aforesaid arguments. learned counsel for the respondent No.2 contended that the judgment in the matter of Ram Harsh Das (supra) covers the field and in view of the observations made in the said Judgment this Court should not exercise its inherent powers and should not grant exemption to the accused from his personal appearance. It is also contended that present is a case where the allegations against the accused are that he misappropriated a sum of Rs. Forty lacs and more. It is also contended that present is a case where the allegations against the accused are that he misappropriated a sum of Rs. Forty lacs and more. According to him the provisions under Sec. 205, Cr. P.C. are not meant for people like present applicant. 5. I have heard the parties at length. 6. I am required to explicit what is the implicit in Sec. 205, Cr. P.C. Sec. 205 of the Code reads as under: "205. Magistrate may dispense with personal attendance of accused.- (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 manner hereinbefore provided. " 7. From a plain reading of Sec. 205 of the Code, it would clearly appear that 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. On the first perusal of subsection (1) of Sec. 205 of the Code, it would appear that the provisions simply give a discretion to the concerned Magistrate but on a deeper analysis would show that in fact it conferned a right upon the accused to make an application and convince the Magistrate that in a case where summons have been issued an order dispensing with the personal attendance of the accused may be passed. The accused may convince the Court on variety of reasons that his personal attendance is not required. No hard and fast rule can be made nor a straight jacket formula can be provided to the Magistrate to say that under what circumstances he shall exercise his powers under Sec. 205 of the Code. Though the discretion vests in the Judicial Magistrate 1st Class but the discretion is to be exercised judiciously, judicially and not in arbitrary, fanciful or whimsical manner. The accused may bring out myriad pleas before the Magistrate 1st Class to convince him that accused is entitled to be represented or he may appear by his pleader. Though the discretion vests in the Judicial Magistrate 1st Class but the discretion is to be exercised judiciously, judicially and not in arbitrary, fanciful or whimsical manner. The accused may bring out myriad pleas before the Magistrate 1st Class to convince him that accused is entitled to be represented or he may appear by his pleader. In the given set of the facts, the Magistrate certainly can exempt the accused from his personal attendance provided of course he is satisfied and see reasons so to do. 8. Sec. 205(2) of the Code of Criminal Procedure clothes the Magistrate with the power that if during the course of the inquiry or trial he comes to the conclusion that attendance of the accused is required then he can direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner as provided in the Code. At this stage it would also be necessary to refer to Sec. 317 of the Code of Criminal Procedure. Sec. 317 of the Code reads as under: "317. Provision Jar inquiries and trial being held in the absence of accused in certain cases (1) At any stage of an enquiry or trial under this Code if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice or that the accused persistently disturbs the proceedings in Court the Judge OF Magistrate may. if the accused is represented by a pleader dispense with his attendance and proceed with such inquiry or trial in his absence and may at any subsequent stage of the proceedings direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary he may if he thinks fit and for reasons to be recorded by him either adjourn such inquiry or trial or order that the case of such accused be taken up or tried separately." 9. Sec. 317 of the Code authorises and enables the Court to exempt the accused from his personal attendance if the concerned Judge or Magistrate is of the opinion that the personal attendance of the accused before the said court is not necessary. Sec. 317 of the Code authorises and enables the Court to exempt the accused from his personal attendance if the concerned Judge or Magistrate is of the opinion that the personal attendance of the accused before the said court is not necessary. It may also direct that presence of the accused would not be necessary if the accused persistently disturbs the proceedings in the Court. 10. Not only he can dispense with the personal attendance of the accused but at any subsequent stage of the proceedings may direct the personal attendance of such accused. The concerned Judge or Magistrate if the accused is not represented by pleader or where he considers that the personal attendance is necessary he may if he thinks fit and for the reasons to be recorded by him either adjourn such inquiry or trial or order that the case of such accused be taken up or tried separately. 11. On perusal of Sec. 205 and Sec. 317 of the Code would make it clear that in a case when summons are issued at first instance the personal attendance of the accused may be dispensed with. It would be immaterial that, summons have been issued in summons cases or in the warrant cases. The only requirement of the law is that when a Magistrate issues a summons if he sees reasons so to do he may dispense with the personal attendance of the accused. The power under Sec. 205, Cr. P.C. can be exercised by the Magistrate if summons only have been issued. Sec. 317 of the Code applies to a later stage which would be clear from the language employed in the section. The language of Section 317 of the Code would make it clear that at any stage of an inquiry or trial under the Code on being satisfied and for the reasons to be recorded the personal attendance of the accused may be dispensed with. 12. In the present case there is no doubt that at the first instance summons were issued and by order dated 19.4.2002 it was directed that if the accused does appear before the Court within five days an arrest warrant may be issued and that the directions were kept in abeyance for a period of fifteen days. 13. 12. In the present case there is no doubt that at the first instance summons were issued and by order dated 19.4.2002 it was directed that if the accused does appear before the Court within five days an arrest warrant may be issued and that the directions were kept in abeyance for a period of fifteen days. 13. In the matter of Ram Harsh Das (supra) while appreciating the provisions contained under Section 205 of the Code a Division Bench of this Court observed that the Magistrate can exercise the powers conferred upon him under Sec. 205 even in warrant cases provided he had issued summons instead of issuing the warrant. The Court after appreciating number of the cases cited at Bar observed that in a case where a warrant has been issued at the first instance the power under Sec. 205. Cr. P.C. cannot be exercised. In paragraph 49 of the said judgment the Bench observed that no hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal attendance. It would be useful to quote paragraph 49 of the said Judgment "49. The power referred to in Sec. 205 (1) of the Code is discretionary. Even in cases where the provision is applicable the Magistrate with the personal appearance in reasonable manner. No hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance. In petty cases the court should be liberal in granting exemption from personal appearance but will not exercise such power in the cases of serious nature including the offence involving moral turpitude. The court has to consider the nature of the allegations conduct of the accused and the inconvenience likely to be caused to the accused due to his appearance in the court and after relevant consideration at the time of deciding the question of dispensing with the personal appearance. No categorisation of cases where the power is to be exercised under Sec. 205 of the Code can be made but generally. No categorisation of cases where the power is to be exercised under Sec. 205 of the Code can be made but generally. Pundanashin old and sick persons factory workers and labourers busy business people or public functionaries are to be given the benefit of the said provision unless as stated above they are facing prosecution in serious offences like murder rape misappropriation of money harassment to women etc. 14. The High Court in no ambiguous terms observed that no categorisation of cases where the power is to be exercised under Sec. 205 of the Code can be made out. The High Court however further observed that particular persons can be granted exemption and in particular cases exemption may not be granted. On the basis of the observations made in paragraph 49 of the judgment learned counsel for the respondent No. 2 contended that the observations are final for all practical purposes and as the allegations against the present applicant are relating to moral turpitude amassing money and misappropriation of the funds exemption can not be granted. 15. I am not convinced with the argument In paragraph 49 at least at two places the Division Bench observed that no hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer and no categorisation of cases where the power is to be exercised under Sec. 205 of the Code can be made. If those were the observations of the Division Bench then the observations have to be taken in their true perspective. The High Court had simply suggested that in particular type of cases the power may or may not be exercised. The High Court was simply giving the examples but was not laying down the law. The law simply is that if the Magistrate sees reasons so to do he may dispense with the personal attendance of the accused and permit him to appear by his pleader. The observations made by this court were for the said case only and the examples given in paragraph 49 of the said judgment were not to lay down the law. 16. In the matter of Bhaskar Industries Ltd. V/s. Bhiwani Denim and Apparels Ltd. & Ors. 2, the question relating to exemption from appearance or dispensation with the personal attendance of the accused came up for consideration before the Supreme Court. 16. In the matter of Bhaskar Industries Ltd. V/s. Bhiwani Denim and Apparels Ltd. & Ors. 2, the question relating to exemption from appearance or dispensation with the personal attendance of the accused came up for consideration before the Supreme Court. Their Lordship after taking into consideration Sections 317, 273, 251 and 205 of the Code of Criminal Procedure observed that it would be within the discretion of the Magistrate to grant exemption or dispense with the personal attendance of the accused. The material observations in relation to grant of exemption are contained in paragraph 15 of the judgment which read as under: "15. These are days then prosecutions for the offence under Sec. 138 are galloping up in criminal courts. Due to the increase .of inter-State transactions through facilities of the banks, it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Sec. 138 of the NI Act the trial should be that, of a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case in a particular situation, would indict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how can relieve such an ,accused of the great hardships, without causing prejudice to the prosecution proceedings." 17. Though their Lordships were considering Sec. 138 of the Negotiable Instruments Act but the observations made by their Lordships of the Apex Court would be of universal application. The Apex Court was alive to the situation that it may not be uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Their Lordships had also taken into consideration the changes in the society and the rights of the persons. In the present case the complainant is making allegations against the applicant that he committed breach of trust and defalcated almost about 40 lacs. On these allegations it is contended that because the allegations are of very serious nature, the attendance of the accused does not deserve to be dispensed with. I fail to understand the gravity of the said argument. On these allegations it is contended that because the allegations are of very serious nature, the attendance of the accused does not deserve to be dispensed with. I fail to understand the gravity of the said argument. The complainant says that even if the accused has yet not been found guilty he must be required to attend the court on each and every date. The complainant with his sadistic approach says that the accused was operated upon in February. 2002 and the Doctor required him to take rest for one month or two months and as the said period is over the accused must be required to appear in the Court. This approach of the complainant would simply show that instead of prosecuting the accused for a good cause he wants to persecute the Present applicant. It is contended before me that the applicant is not a renowned Doctor or he is not running a 100 bed hospital. What useful purpose would be served by keeping the accused present but for satisfying the complainant, I fail to understand. The charges against the accused are that he collected money did not maintain the accounts and in a Fact Finding Enquiry some members of the Association found that he had misappropriated the funds. Is there a case of identification the answer would be no. Is present a case where in absence of the accused the trial cannot be proceeded the answer again would be no. Section 205 of the Code is a provision - which protects the accused persons from the wrath of overzealous complainants who want that on their initiation the accused should be brought before the Court. Section 205 is concerned between the accused and the concerned Judge. The complainant in a given case may not have any right to oppose the applicant if the accused convinces the court that his presence would not be-necessary he would not raise a question relating to identification and he is ready and willing to give an undertaking before the Court then the evidence record-ed in his absence would be taken to be legal. 18. In the matter of Bhaskar Industries Ltd. (supra) their Lordships of the Supreme Court have also made the following observations: "17. Thus in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. 18. In the matter of Bhaskar Industries Ltd. (supra) their Lordships of the Supreme Court have also made the following observations: "17. Thus in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the- personal appearance of the accused is dispensed with. Sec. 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only -to, an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses." 19. A reference to paragraph 19 of the said judgment would also be necessary which reads as under: "19. The position therefore boils down to this: it Is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above as a matter of course. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above as a matter of course. We may reiterate that when an accused makes an application to a Magistrate, through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. 20. From the observations made above it would clearly appear that if the Magistrate finds that insistence of the personal attendance of the accused would itself inflict enormous suffering or tribulations on the accused and the comparative advantage would be less the Magistrate may dispense with the personal attendance. Their Lordships also observed that such discretion can be exercised where due to the far distant place at which the accused resides or carries on business or on account of any physical or other good reason the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interest of justice. 21. Taking into consideration the totality of the circumstances the nature of the allegations and the law laid down by the Division Bench of this Court and by the Apex Court. I am of the considered opinion that present is a fit case for granting exemption to the accused from his personal appearance. Exercising my powers under Sec. 482 of the Code of Criminal Procedure I grant the application filed by the accused and dispense with his personal attendance and hereby direct that he may appear by his pleader. In accordance with the observations made by the Apex Court it is further directed that the benefit would be granted to the accused if he gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in the court and that he has no objection in taking evidence in his absence. 22. It goes without saying that if at any time during the course of the trial the court comes to the conclusion that presence of the accused is required then for the reasons to be recorded by it. It may direct the accused to remain in attendance. 23. With the observations and directions aforesaid the petition is allowed.