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2006 DIGILAW 1196 (JHR)

Dharmadeo Prasad v. State of Jharkhand

2006-09-14

DILIP KUMAR SINHA

body2006
ORDER D.K. Sinha, J. 1. This Criminal Revision Application is directed against the order impugned passed by Special Judge. C.B.I., Dhanbad in R.C. Case No. 11 (a)/200 ID on 20.6.2006 whereby and where-under the petition filed on behalf of the petitioner Dharmadeo Prasad under Section 205, Cr PC for dispensation of his personal appearance was rejected. 2. Mr. Bimal Kumar, Sr. learned Counsel submitted that the petitioner is aged about 80 years, completely bed ridden, against whom summon has been issued by the Court of Special Judge, C.B.I., Dhanbad calling upon the petitioner to appear in person or through his pleader at the first instance. But unfortunately, on account of his various ailments and over whelming medical reports in proof of his serious health condition, he preferred a petition under Section 205 Code of Criminal Procedure for his exemption from his personal appearance in the Court, and that he be represented through his counsel in the Court which was rejected. Advancing his argument the learned Senior Counsel submitted that pursuant to the notice received the petitioner appeared as witness before the CB1 under Section 161, Cr PC where he made statements that several years ago, he had identified the photograph of the accused Shri P.K. Mishra for opening his bank account at the S.K. Puri. Patna Branch, of the United Bank of India while the accused P.K. Mishra was residing in the portion of his house on rent situated at S.K. Puri. The rent of the house was being paid to the petitioner from the Railway Department, and as such, there being no mens rea and on good faith the petitioner had got open the bank account for the accused P.K. Mishra, the then a class I employee of Indian Railway. The petitioner was the retired Chief Engineer as well as freedom fighter now aged about 80,years. The co-accused P.K. Mishra has been admitted to bail. 3. Advancing his argument learned Counsel submitted that the learned Special Judge, CBI, Dhanbad, while issuing summons dated 21st April, 2006 to the petitioner in the printed form called upon to the petitioner, "You are hereby required to appear (2) in marginal note it has been defined in (2) (in person or pleader as the case may be). 4. Thus in compliance of the said order/direction contained in the summons the petitioner appeared through his pleader for the reasons mentioned in the application. 4. Thus in compliance of the said order/direction contained in the summons the petitioner appeared through his pleader for the reasons mentioned in the application. Section 205 of the Code of Criminal Procedure speaks: 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 the manner hereinbefore provided. 5. The learned Counsel reiterated that the petitioner is suffering from various ailments to which all the documents related to his ailments, pathological tests, prescriptions have been annexed which are the proof of his physical disability and on such ground he would have been dispensed with his personal attendance on terms laid down by the Court below. 6. Reliance has been placed upon the decision reported in (2001) 7 SCC 410. The Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. held: The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court in that particular case. 7. Under the facts and circumstances, from perusal of the materials on record, including the documents related to various ailments of the petitioner and that he was the freedom fighter and that on account of his physical disability he is unable to move frequently, I find that the prayer of the petitioner made under Section 205, Cr PC should have been considered, but it is evident that the Court below failed to take into consideration and appreciate the merits of the petition filed on his behalf. The impugned order, therefore, dated 20.6.06 passed by the Special Judge, C.B.I., Dhanbad in R.C. Case No. 11(a)/200ID is set-aside in view of the fact that the petitioner is not involved in such offence of moral turpitude and 1 observe that denial of such relief to the petitioner maxi put him under hardship. 8. Taking the considered view the petitioner Dharmadeo Prasad is dispensed with his personal attendance with the direction that he would appear in the Court below through his Lawyer on undertaking that he would not dispute his identity as the particular accused in the said case and his counsel would remain present in the Court. There would not be objection on his part in recording of prosecution evidence in his absence. It is observed that at any time in course of trial, the Court may direct him to remain present physically, If the Court finds that the presence of the petitioner is required for reasons to be recorded and in such case he would not avoid to attend the Court. With the above observation, the Criminal Revision Application is allowed. Application allowed.