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2006 DIGILAW 404 (PAT)

Anish Chakrabarty v. State Of Bihar

2006-05-02

REKHA KUMARI

body2006
Judgment Rekha Kumari, J. 1. This is an application u/s. 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing the order dated 16.12.2004 passed by Shri Manoj Kumar Singh, Judicial Magistrate, 1st Class, Patna in complaint case No. 2271-C of 2003 by which he had rejected the prayer of the petitioner Anis Chakrabarty to dispense with his personal attendance in Court in the case under the provision of sec. 205 of the Code. Heard. 2. The case of the complainant-Opposite Party No. 2 Jai Shankar Prasad Jha in nut shell is that Gautam Kumar, son of the complainant wanted to be admitted in Private Marine College as he had not appeared at the I.I.T. Examination. The father the complainant approached the petitioner, who runs a private Marine College at Kolkata and his friend Santosh Singh who run an institution at Varanasi. On 3rd June 2003 the petitioner and Santosh Singh had come to attend a marriage at Patna and on 4.6.2003 they came at the house of the complainant along with Rupa Jaiswal. Santosh Singh introduced himself as Director of College of Marine Telecommunication, Varanasi, Rupa Jaiswal, as his Secretary and introduced the petitioner as Director of SEACON Marine College, Kolkata. They assured that the son of the complainant would be admitted in the Marine Engineering College at Kolkata for which he would have to pay rupees three lakhs, out of which he would be given receipt of Rs. 1,50,000.00 while the remaining amount would be spent towards illegal payment and commission of the accused and besides this, he would have to pay Rs. 10,200.00 towards Registration charges. It is further alleged that the accused persons including the petitioner received a total sum of Rs. 1,55,200.00 from the complainant for the admission of his son and the complainant was asked to come to Kolkata with his son for admission. When the complainant and his son went to Kolkata, the petitioner and Santosh Singh took them to Marine College and thereafter fled away. The complainant went to Marine College and made enquiry and learnt that admission in that College was not possible without appearing in the competitive test held by the I.I.T. 3. The complainant filed the complaint in the court of the Chief Judicial Magistrate, at Patna. The complainant went to Marine College and made enquiry and learnt that admission in that College was not possible without appearing in the competitive test held by the I.I.T. 3. The complainant filed the complaint in the court of the Chief Judicial Magistrate, at Patna. The learned Chief Judicial Magistrate after taking cognizance transferred the case to the court of Judicial Magistrate, Patna for enquiry and disposal. Thereafter, the petitioner and others were summoned to face trial under Secs. 323, 406, 420, 120-B of the Indian Penal Code, 1860. It appears from the impugned order that after summons ultimately non-bailable warrant of arrest was issued against the petitioner. The petitioner then moved the Sessions Judge for anticipatory bail which was rejected. The petitioner then filed an application u/s. 205 of the Code to dispense with his personal attendance. The learned Magistrate after hearing both sides held that the offences under Secs. 406 and 420 of the Indian Penal Code are of serious nature involving moral turpitude and warrant of arrest has been issued against the petitioner and thereafter he was not entitled to the benefit of the provision of sec. 205 of the Code. Accordingly by the impugned order he rejected the prayer of the petitioner. 4. Learned Counsel for the petitioner submitted that without any service report of summon, warrant of arrest was issued against the petitioner and therefore, the petitioner is entitled to get the benefit provided to an accused in Section 205 of the Code. In support of his submission he has relied on the decision of this Court in the case of Jayant Dang and Anr. V/s. State of Bihar 2004 (4) PLJR, 25 and the decision of this Court in the case of Sumit Bose and Ors. V/s. State of Bihar 2002 (3) PLJR 208 . He further submitted that even in cases where warrant of arrest has been issued, the provision of sec. 205 of the Code may be attracted. 5. He also submitted that the petitioner is a busy business person and is a resident of Kolkata which is far off place from Patna and, therefore, it is difficult for him to attend the court personally on each and every date and he waives his right of identification in court. 6. 205 of the Code may be attracted. 5. He also submitted that the petitioner is a busy business person and is a resident of Kolkata which is far off place from Patna and, therefore, it is difficult for him to attend the court personally on each and every date and he waives his right of identification in court. 6. It was also submitted by the learned Counsel that the petitioner is the Director of a premier College in Kolkata and it is not expected that he would indulge in such affair and it appears that some body has cheated the complainant in the name of the petitioner. 7. As regards the first submission of the learned Counsel, sec. 204 of the Code provides that in a summons case the Magistrate taking cognizance must issue summons for the attendance of the accused, and in a warrant case he may issue a warrant or if he thinks fit, he may issue summons for the appearance of the accused. 8. sec. 205 of the Code reads as follows : (1) Whenever a Magistrate issues a summon, 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. 9. A bare perusal of provision of sec. 205 of the Code, therefore, makes it clear that whether the case is a summons case or a warrant case, the Magistrate at the time of taking cognizance and wishing to issue process against the accused may dispense with the personal attendance of the accused. But in both types of cases, he can do so only at the time of issue of summons. There is nothing in sec. 205 of the Code to show that the Magistrate can exercise the power after warrant of arrest has been issued against the accused. 10. I think in this connection it is apt to refer to the decision of a Division Bench of this Court in the case of Ram Hare Das V/s. State of Bihar 1998 (1) PLJR, 502. After referring to Secs. 10. I think in this connection it is apt to refer to the decision of a Division Bench of this Court in the case of Ram Hare Das V/s. State of Bihar 1998 (1) PLJR, 502. After referring to Secs. 204 and 205 of the Code it was held therein that "thus from a bare reading of both the provisions it is clear that the Magistrate can exercise a power u/s. 205 of the Code even in warrant cases also, provided he has issued summons u/s. 205(1) of the Code instead of warrant. The legislature never intended that power to dispense with personal appearance cannot be exercised in a warrant case. However, a rider has been put that the power has to be exercised only when the Magistrate on being satisfied that the summons should be issued instead of warrant, issues summons. 11. Thus, from the above decision it is clear that the only requirement of law is that when a Magistrate issues a summons whether it is a summons case or a warrant case, sees reasons so to do, he may dispense with the personal attendance of the accused. The power u/s. 205 of the Code can be exercised by the Magistrate if summons only has been issued. He cannot dispense with the personal attendance after warrant of arrest is issued. But from perusal of the impugned order, it appears that in this case warrant of arrest had already been issued against the petitioner. 12. The argument of the learned Counsel, of course, is that without the receipt of service report by the Magistrate, warrant was issued against the petitioner. In the case of Jayant Dang (Supra), warrant was issued without the service report of summons. The court relying upon the judgment of this Court reported in 2000 (3) PLJR 251 held that warrant thus having been issued contrary to law, the proceedings would be deemed to be at the stage of summons. Similar view was also taken in the case of Sumit Bose (Supra). But in this case though learned Counsel has submitted that without the receipt of service report, warrant was issued, he has not filed any document in proof of the same. Therefore, it cannot be said that the warrant of arrest issued in this case was contrary to law. 13. But in this case though learned Counsel has submitted that without the receipt of service report, warrant was issued, he has not filed any document in proof of the same. Therefore, it cannot be said that the warrant of arrest issued in this case was contrary to law. 13. Therefore, in this case when at the stage of summon, the personal attendance of the petitioner was not dispensed with and thereafter warrant of arrest was issued against him, it is evident that the learned Magistrate was not empowered to dispense with the personal attendance u/s. 205 of the Code and he was justified in refusing the prayer of the petitioner. 14. As regards the other submission of the learned Counsel, in the above Division Bench decision of this Court, some guidelines have also been given, when a Magistrate should exercise power u/s. 205 of the Code. The Court has held that the exercise of power u/s. 205 of the Code is discretionary and is to be considered in a reasonable manner. No hard and fast rule can be laid down. The court should be liberal in granting exemption in personal appearance except where serious issues or allegation of moral turpitude are involved. The nature of allegation, conduct of the accused, inconvenience likely to be caused to the accused due to his appearance on every day in the court, the comparative advantage to the prosecution are all relevant consideration for deciding the question of dispensing with the personal appearance. 15. In this case the petitioner, of course, is a Director of a Private Marine College at Kolkata and thus is a busy person. He also resides at Kolkata which is far off from Patna where the trial is to take place. But from perusal of the complaint it appears that the allegation against the petitioner is of serious nature, unbecoming of a Director of such an Institute. The defence of the petitioner also is that some boy else had cheated the complainant in his name and, therefore, his identification in court by the witnesses is very material even though he is ready to undertake that he would not dispute his identity. I think on merit also, the petitioner does not deserve the benefit of sec. 205 of the Code. 16. In the result, I do not find reason to interfere with the impugned order. This application is accordingly dismissed.