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2006 DIGILAW 639 (JHR)

M. L. Narula v. State Of Jharkhand

2006-05-15

DILIP KUMAR SINHA

body2006
JUDGMENT D.K. Sinha, J. 1. The petitioner M.L. Narula has preferred this petition under Section 482 of the Code of Criminal Procedure for quashing the orders impugned dated 30.11.2005, passed by the 1st Additional Sessions Judge, Chaibasa in Cr. Rev.No. 38 of 7005 whereby and whereunder he affirmed the order dated 6.6.2005 of the court of Chief Judicial Magistrate, Chaibasa passed in C/7 Case No. 198 of 1999. 2. The petitioner was prosecuted along with other co-accused under Section 92 of the Factories Act, he being the Managing Director of ACC Limited with its cement factory unit at Jhinkpani, Chaibasa. A petition was filed under Section 205 of the Code of Criminal Procedure before the court below on the ground stated therein that he was the Managing Director at the Head Office, Mumbai controlling as many as 16 cement factories spread over in different states and it was not possible for him to attend the court on each and every date and he undertook to appear in the case whenever required by the court as envisaged under Sub-clause 2 of Section 205 of the Code of Criminal Procedure. The Chief Judicial Magistrate by order dated 31.7.2004 allowed the petition of the petitioner under Section 205(1) of the Code of Criminal Procedure with a condition that he would remain present before the said court at the time of charge, statement under Section 313 of the Code of Criminal Procedure and judgment in that case. 3. A petition was filed in the court of the Chief Judicial Magistrate, Chaibasa on 4.4.2005 with the submission that substance of accusation may be allowed to be explained to the advocate of the petitioner for the reasons stated therein, mainly on the ground that he being the Managing Director of ACC Limited was stationed at Mumbai and that he was ready to abide by the condition of the court. A separate petition was filed on 17.5.2005 with the similar prayer almost on similar ground but with the medical certificate that the petitioner was not keeping good health, being his age 65 years and his movement has been restricted under the medical advice for bed rest only with bath room privilege. The medical certificate enclosed with the subsequent petition disclosed his blood pressure as 200/130 on 12.5.2005. 4. The medical certificate enclosed with the subsequent petition disclosed his blood pressure as 200/130 on 12.5.2005. 4. The Chief Judicial Magistrate, Chaibasa, vide order impugned dated 6.6.2005 rejected the petitions of the petitioner dated 4.4.2005 and 17.5.2005 on the groundsthat the personal attendance of the petiiioner was dispensed by the order dated 31.7.2004 subject to condition that he must remain present before the said court at the time of charge, statement under Section 313 of the Code of Criminal Procedure and judgment. 5. In the present case since the offence in which the case was registered was summons trial case, so the petitioner was required to appear at the time bf explaining the substance of accusation to him as per condition imposed while allowing his petition under Section 205(2) of the Code of Criminal Procedure. 6. Against such rejection order passed by the Chief Judicial Magistrate, Chaibasa on 6.6.2005, the petitioner preferred a Criminal Revision and the 1st Additional Sessions Judge, Chaibasa by order dated 30.11.2005 affirmed the order of the lower court and held that the order dated 31.7.2004 passed by the Chief Judicial Magistrate under Section 205 of the Code of Criminal Procedure subject to conditions is binding on the petitioner and that he cannot undo the order by filing a fresh petition in this regard. 7. The learned Counsel for the petitioner submitted that in summons case the personal appearance of an accused can be dispensed with even at the stage of explaining the substance of accusation as also at the time of pronouncing judgment of acquittal or conviction and in case of conviction on his plea of guilt and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine and when there is specific provision of law that order of conviction can also be pronounced to the lawyer of an accused in a summons trial case as contain in Section 253 of the Code of Criminal Procedure the trial court should have applied his discretion liberally to dispense his personal appearance at the time of explaining the substance of accusation. The apex Court has formulated certain principle in this regard reported in AIR 1992 SC 1815 which speaks as under: it is salutary to note that judicial process should not be an instrument of oppression or needless harassment. 8. The apex Court has formulated certain principle in this regard reported in AIR 1992 SC 1815 which speaks as under: it is salutary to note that judicial process should not be an instrument of oppression or needless harassment. 8. The court finds that the personai appearance of the petitioner herein was dispensed by the trial court allowing his petition filed under Section 205(1) of the Code of Criminal Procedure applying his judicial discretion, but at the same time provisions of Section 205(2) envisages 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. The order passed by the Chief Judicial Magistrate, Chaibasa in C/7 case No. 198 of 1999 dated 31.7.2004 indicates that the petition filed by the petitioner M.L.Narula under Section 205(1) of the Code of Criminal Procedure was admitted and allowed subject to conditions under Section 205(2) of the Code of Criminal Procedure that the petitioner must remain present before the said court at the time of framing of charge, statement under Section 313 of the Code of Criminal Procedure and judgment in the case. 10. The provision of trial of summons case by a Judicial Magistrate has been described in Chapter XX of the Code of Criminal Procedure and there is no provision as such therein of either framing of charge or recording of the statement of an accused under Section 313 of the Code of Criminal Procedure. In this manner trial court below has technically erred in putting such conditions upon the petitioner while allowing the petition under Section 205(1) of the Code. However, at the same time there is provision of explaining the substance of accusation to an accused under Section 251 of the Code in stead. An accused is required to undergo such process of substance of accusation to be explained to him by the trial court for fair trial and under the procedural law. 11. However, at the same time there is provision of explaining the substance of accusation to an accused under Section 251 of the Code in stead. An accused is required to undergo such process of substance of accusation to be explained to him by the trial court for fair trial and under the procedural law. 11. Section 253(2) of the Code of Criminal Procedure has conferred certain discretionary power to the Magistrate, which speaks as under: The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid. 12. Under the facts and circumstances, when an order of conviction can be pronounced in absence of the accused to a pleader authorized by him, substance of accusation can also be explained to his pleader in absence of the accused. The ground set out for the consideration before the court for dispensation of personal appearance of the petitioner at the stage of explaining substance of accusation to him requires consideration, in view of his old age, ailment and many other factors. 13. Under the facts and circumstances, the order passed by the Chief Judicial Magistrate, Chaibasa in C/7 case no. 198 of 1999 dated 6.6.2005 as also the order impugned passed by 1st Additional Sessions Judge, Chaibasa in Cr.Rev. No. 38 of 2005 dated 30 11.2005 are set aside. The personal appearance of the petitioner at the time of explaining the substance of accusation, before the trial court below is dispensed with on the condition that his Advocate on record would remain present at such stage but it is desirable that petitioner should he in attendance at the time of pronouncement of judgment in the instant case. 14. With the aforesaid observations, this petition is allowed.