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2003 DIGILAW 380 (JHR)

P. B. Mishra v. State of Jharkhand

2003-03-25

AMARESHWAR SAHAY

body2003
Order In the instant application the petitioner has prayed for quashing of the order dated 3.10.2002 passed by the Special Judge, C.B.I.-cum-1st Addl. Sessions Judge Dhanbad in R.C. case no. 9(A)/97(D) whereby the petition filed by the petitioner under section 205 Cr. P.C. for dispensing with his personal appearance in court has been rejected. 2. For the purpose of deciding the issues raised in this case it is not necessary to state the facts in details, suffice is to say that on the basis of the First Information report and on the order of the Hon'ble Patna High Court, C.B.I. took up investigation in the present case which is known as Bitumen Scam Case. C.B.I. after completion of the investigation submitted chargesheet under Sections 406,407,409,420 and 120B of the Indian Penal Code and Section 13(1) read with section 13(1)(c) and (d) of Prevention of Corruption Act against altogether 15 accused persons including the petitioner who was said to be a Senior Operation Officer, BPCI, Barauni and on the basis of the chargesheet submitted by the C.B.I. learned Special Judge took cognizance on 11.6.2002 of the offence against all the accused persons including the petitioner and issued summons' for his appearance in court. 3. The Petitioner filed an application under section 205 Cr.P.C. for dispensing with his personal appearance in court on the ground that he is holding a responsible post in a government company and posted at Bajbaj and his absence from his duty will affect company's revenue. 4. The learned counsel for the petitioner has relied on the decision of Bhaskar Industry Ltd. vs Bhiwani Denim and Apparels Ltd. and others reported in (2001) 7 S.C.C. 401 , Dr. Prem Agarwal vs. The State of Bihar and Am. reported in 2002 (3) RL.J.R. 583 and Ram Harsh Das Vs. the State of Bihar and ors. Reported in 1998 (1) P.L.J.R. 502. 5. For correct appreciation of the issue raised in this case it is necessary to examine the law on this point. 6. Section 205 Cr.P.C. provides for the power of the Magistrate to dispense with the personal attendance of the accused which is quoted hereinbelow : (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. 6. Section 205 Cr.P.C. provides for the power of the Magistrate to dispense with the personal attendance of the accused which is quoted hereinbelow : (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 proceeding, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. 7. It is clear that in a particular case when the summons have been issued by the Magistrate and if he sees that personal attendance of the accused can be dispensed with for reason so to do then he may permit the accused to appear by his pleader. The division Bench of the Patna High Court in the case of Ram Harsh Das and the State of Bihar reported in 1998 (1) P.L.J.R. 502 has held that it was never intended by the Legislatures that provisions of Section 205 Cr. P.C. is to be used to dispense with the appearance of the accused facing prosecution in serious case involving major offence like moral turpitude or an offence punishable with a sentence of long imprisonment. The power under section 205 Cr.P.C. is discretionary and the court while exercising power under this provision must act in reasonable manner considering the nature of allegation and the inconvenience likely to be caused to the accused due to his appearance in court. Relying on the decision of the Division Bench of the Patna High Court in 1998 (1) P.L.J.R. 502 a Singh Bench of the Patna High court in the case of Dr. Prem Agarwal Vs. State of Bihar reported in 2002 (3) P.L.J.R. 583 has held that no hard and fast rule can be made nor a strait jacket formula can be provided, as to under what circumstances the Magistrate shall exercise his power under section 205. In the case of Bhaskar Industries Ltd. (Supra) the Hon'ble Supreme Court was dealing the case in which the accused persons were being tried for committing an offence under section 138 of the Negotiable Instruments Act. In the case of Bhaskar Industries Ltd. (Supra) the Hon'ble Supreme Court was dealing the case in which the accused persons were being tried for committing an offence under section 138 of the Negotiable Instruments Act. Considering the facts of that case, the Supreme Court, has held in paragraph 15 of the said Judgment which is quoted herein below : "These are days when prosecutions for the offence under section 138 are galloping up in criminal courts. Due to the increase of inter-State transaction 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 section 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 inflict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardship, without causing prejudice to the prosecution proceedings. 8. Therefore, the above mentioned decision of the Supreme Court is of no help to the petitioner. 9. Considering the facts and circumstance of the present case and law on this point as discussed above, I am of the view, that exemption under section 205 of Cr.P.C. can be granted by the court in appropriate cases in which offences alleged are minor and trivial in nature. The exemption under section 205 of the Cr.P.C. is not meant for the accused who is facing prosecution in a serious case involving major offence like moral turpitude of offence punishable for long imprisonment. The present case in which the petitioner has prayed for dispensing with his personal appearance in court is a case of serious nature and therefore, the learned Magistrate rightly did not exercise his discretion in granting exemption to the petitioner as envisaged under section 205 Cr. P.C. 10. In that view of the matter I do not find any illegality in the impugned order dated 3.10.2002 passed by the Special Judge, Dhanbad in R.C. case no. 9(A)/97 (D). It is, accordingly, dismissed.