Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 1212 (DEL)

SUSHIL KUMAR MODI v. MOHAN GURUSWAMY

2006-07-24

A.K.SIKRI

body2006
A. K. SIKRI, J. ( 1 ) THE respondent herein filed a complaint No. 855/1/2004 against the petitioner and some other persons under Sections 500/501, IPC. The allegations are that the petitioner had made certain defamatory remarks against the respondent during the period when Legislative Assembly elections for the State of bihar were underway in the year 2004. The other accused persons had tendered apology and in view thereof the respondent herein has dropped them from the proceedings and proceedings are pending only against the petitioner herein. After recording pre-summoning evidence, the learned MM having been satisfied that prima facie case was made out, issued summons to the petitioner. Pursuant thereto petitioner appeared in the Court and was granted bail. ( 2 ) THE case is at the stage where notice under Section 251 of the Cr. P. C. is to be framed. The petitioner on earlier occasion had asked for exemption from personal appearance for particular dates and was granted exemption. Thereafter he filed application seeking general exemption from appearance and wanted to be represented through Counsel. This application was considered by the learned MM and vide order dated 6. 6. 2006, learned MM rejected the said application and has issued bailable warrants against him. Challenging this order, present petition has been filed. ( 3 ) THE case of the petitioner is that he is presently discharging public functions as Deputy Chief Minister in the State of Bihar and is having portfolio of finance Minister. In that capacity he has to perform important public functions at patna and due to his responsibilities and requirement of personal presence of the petitioner in this case shall adversely affect his public duties and would cause substantial hardships. It is further stated that he is a permanent resident of Patna in the State of Bihar and, therefore, it is not convenient for him to come to Delh. In the application filed before the learned MM it was also stated that he would be represented through Counsel. Names of Advocates were given in the application. The petitioner had also undertaken that he would not dispute his identity in the case and that a Counsel in his behalf would be present in the Court on all dates of hearing and further that he has no objection if Court takes evidence in his absence. Names of Advocates were given in the application. The petitioner had also undertaken that he would not dispute his identity in the case and that a Counsel in his behalf would be present in the Court on all dates of hearing and further that he has no objection if Court takes evidence in his absence. While rejecting the request of the petitioner herein the learned MM, inter alia, observed as under: "having considered the submissions advanced and going through the previous proceeding sheets, I am of the opinion that except for dated dated 28. 1. 2006, the accused since 24. 10. 2005 has never appeared despite directions of this Court. The Court on an application moved on his behalf seeking exemption had allowed him to be represented through counsel on 2. 3. 2006. The exemption was allowed in light of the Explanation 2 of Sub-clause 2 of Section 309, Cr. P. C. There is no doubt that as per Section 317, Cr. P. C. the personal attendance of accused can be dispensed with in view of the exigencies mentioned thereunder. The presence of accused is required not merely for the sake of marking his attendance, but to enable the Court to proceed with the trial. The case is pending at the stage where a notice under Section 251, Cr. P. C. is to be framed and where the presence of accused is necessary. I am of the view that in the absence of accused, the progress of the case at this crucial stage can not be achieved. Considering all aspects, I feel that the personal attendance of accused can not be dispensed with on the ground that the accused is discharging urgent government functions and, therefore, is unable to visit Delhi from bihar. " ( 4 ) LEARNED Counsel for the respondent submits that the respondent would not be having objection if the petitioner is exempted from personal appearance subsequently. However, for framing of notice under Section 251 of the Cr. P. C. the petitioner should present himself. She further argues that the learned MM, after taking into consideration all the facts and circumstances of the case, felt that the attendance of the petitioner cannot be dispensed with at this stage when the case is fixed for framing of notice under Section 251 of the Cr. P. C. the petitioner should present himself. She further argues that the learned MM, after taking into consideration all the facts and circumstances of the case, felt that the attendance of the petitioner cannot be dispensed with at this stage when the case is fixed for framing of notice under Section 251 of the Cr. P. C. and this order being discretionary in nature, this Court should not interfere with the same. ( 5 ) IN view of the aforesaid submissions, the only consideration which has to be bestowed would be on the issue as to whether it is absolutely essential for the petitioner to present himself at the time of framing of notice under Section 251 of the Cr. P. C. The Supreme Court in the case of M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. and Ors. , VI (2001) SLT 120=iii (2001) CCR 208 (SC)=jt 2001 (7) SC 127, had the occasion to deal with this aspect and it observed as under: "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. Section 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. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. " ( 6 ) THUS even at the stage of recording the plea of the accused, the Magistrate is empowered to record the same in the absence of the accused when his Counsel is present and makes such a plea on his behalf. Therefore, it cannot be said that the presence of an accused is absolutely essential at this stage. As to what would be the consideration which would weigh in the mind of a Magistrate to determine whether to grant or refuse exemption to the accused from personal appearance at this stage, can be found in the case of Mrs. Shivani Sadanand v. State and Another, 97 (2002) dlt 443=2002 Crl. L. J. 3384. In para 4, the Court stated the principle to be kept in mind and it reads as under: "admittedly, petitioner is a permanent resident of Bombay. She has been summoned as an accused for the offence under Section 138 of N.. Act which does not involve any moral turpitude. It is a summons trial case. Section 205, Cr. P. C. constitutes an exception to the general rule that the accused must be present in person in the course of inquiry for trial during the criminal case. This section empowers the Magistrate to dispense with the personal appearance of the accused. Power under the section can be exercised not only when the summons are issued against the accused but also at the initial stage, Sub-section (1) of Section 205, Cr. P. C. undoubtedly gives very wide discretion to the Magistrate issuing summons to decide whether the accused should appear in person or should be permitted to appear through a Lawyer but such discretion must be exercised judiciously. It is a settled proposition of law that wherever discretion is vested with Court it has to be exercised judiciously keeping in view the attending circumstances. For the purpose of granting exemption from personal appearance, the Court is only to see whether it would prejudice the progress of the trial. There must be cogent and convincing reasons for rejection of such application. Exemption should not be refused if accused is likely to be put to avoidable hardship and harassment. For the purpose of granting exemption from personal appearance, the Court is only to see whether it would prejudice the progress of the trial. There must be cogent and convincing reasons for rejection of such application. Exemption should not be refused if accused is likely to be put to avoidable hardship and harassment. The power to dispense with the personal attendance of the accused should be liberally exercised except in the criminal cases of serious nature involving moral turpitude or where the offence is punishable with a sentence of long imprisonment. The Court should examine the matter and see whether any useful purpose is likely to be served by requiring the personal appearance of the accused. Personal attendance of the accused to receive notice regarding the substance of accusation and the plea of guilty thereto or not can also be recorded in suitable cases in absentia as has been held by Apex Court as well as by this Court in several authoritative pronouncements". ( 7 ) THUS, exemption was allowed to the accused when it was found that she was a permanent resident of Bombay and the case did not involve any moral turpitude. In para 6 of the said judgment, a question was formulated which a Court is required to address itself by deciding as to whether exemption of this nature should be allowed or not. The question was formulated in the following manner: ". . . . the question which the Court addresses itself is whether any useful purpose would be served by requiring the personal attendance of the accused or the progress of the trial is likely to be hampered on account of his absence". ( 8 ) WE may now apply the aforesaid principle in the instant case. At the outset, i may say that howsoever high a person may be, nobody is above the law. If the presence of the petitioner is required in the Court, it is no excuse that he is Deputy chief Minister or Finance Minister in the State of Bihar. At the same time, if an ordinary person accused of such an offence would be entitled to exemption, the petitioner would also be entitled to same treatment and his status cannot become a disabling factor for him. At the same time, if an ordinary person accused of such an offence would be entitled to exemption, the petitioner would also be entitled to same treatment and his status cannot become a disabling factor for him. ( 9 ) AS noted above, even Counsel for the respondent has conceded that the respondent shall have no objection if the petitioner is allowed exemption from appearance through Counsel once notice under Section 251 of the Cr. P. C. is framed. However, having regard to the nature of proceedings, the allegations made by the respondent in the complaint, I am of the opinion that it is not a case where the personal appearance of the petitioner is absolutely essential even for framing of notice under Section 251 of Cr. P. C. It is a fit case where the Counsel can make such plea on behalf of the petitioner going by the dicta of Supreme Court in the case of Bhaskar Industries (supra ). It is not a case where the petitioner did not appear before the Trial Court. After the summons were issued the petitioner had appeared and obtained bail. The petitioner is a permanent resident of Patna and is discharging public functions. The case against him is a private complaint filed under Section 500 of IPC. In a case like this and going by the nature of the allegations, the notice under Section 251 of the Cr. P. C. can be framed even in his absence and the Counsel can duly represent his case. Therefore, it may not be necessary to force the petitioner to appear in the Court at that stage. The petitioner is, therefore, allowed to represent himself before the Trial Court through his Counsel. Order dated 6. 6. 2006 is hereby quashed. It is, however, made clear that if the notice is ultimately framed and trial starts and during the progress of the proceedings at any stage it is found that presence of the petitioner is absolutely essential, learned MM shall be entitled to direct his presence. ( 10 ) LEARNED Counsel for the respondent prays that time bound direction be given to the learned MM to conclude the trial. As complaint is pending since 2004 and even notice has not been framed till date, this prayer of learned Counsel for the respondent is reasonable. ( 10 ) LEARNED Counsel for the respondent prays that time bound direction be given to the learned MM to conclude the trial. As complaint is pending since 2004 and even notice has not been framed till date, this prayer of learned Counsel for the respondent is reasonable. On the next date of hearing, fixed before the MM, the parties shall be heard on the question of framing notice under Section 251 of the cr. P. C. The Trial Court shall endeavour to complete the trial and decide the complaint as expeditiously as possible and in any case within six months thereafter. ( 11 ) THE petition is disposed of in the aforesaid terms. Petition disposed of.