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2007 DIGILAW 581 (PNJ)

Prabhakar Rao Landge v. State Of Punjab

2007-03-21

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. The petitioner has impugned the order dated 10.7.2006. He was arrayed as an accused person in a complaint initiated by the complainant under Section 19(a)(vii) of the Fertilizer Control Order, 1985 read with Sections 7 and 12AA of the Essential Commodities Act. He is the Deputy General Manager of M/s. Hindalco Industries Limited. The trial Court summoned all the persons who were named as accused in the complaint. 2. Accordingly, an application was moved by the petitioner seeking his personal exemption from appearing before the trial Court on every date of hearing, which was rejected by the trial Court on the ground that his presence had been procured after adopting coercive process and hence he did not deserve the concession of being granted exemption from personal appearance. 3. Aggrieved by the aforesaid order dated 10.7.2006, the petitioner has invoked the provisions of Section 482 of the Code of Criminal Procedure (hereinafter referred as `the Code). 4. It was contended by the learned counsel for the petitioner that Section 205 of the Code does not debar a Court from considering the question of exemption simply because his presence had been procedure through coercive process by issuing warrants either bailable or non-bailable. In support of his contention reliance was placed on Chandan Bose v. Sunil Kumar Sen, 1996(2) RCR(Criminal) 623; Debasis Samantaray v. State of Orissa and another, 2004(1) RCR(Criminal) 75 : 2003 Cri.L.J. 3774 and D.K. Jhaver v. State of Bihar and others, 1996(2) RCR(Criminal) 73. 5. Upon issuance of notice of motion the State has put in appearance. It was contended on their behalf that the appearance of the petitioner was procured through coercive process and therefore the impugned order was perfectly justified. 6. I have heard the learned counsel for the parties and have perused the paper-book. Section 205 of the Code reads as under :- "205. Magistrate may dispense with personal attendance of accused. - (1) Whenever a Magistrate issues a summons, he may, if he sees reasons 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." 7. (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." 7. It is clear from the aforesaid provisions of law that a Magistrate has the power to dispense with the personal attendance of the accused and permit him to appear through a pleader and also to re-enforce his presence in case the situation so warrants. 8. The process adopted by the Court to procure the presence of the accused persons does not debar the Court from considering the matter in the perspective of the powers conferred upon it under Section 205 of the Code unless the conduct of a person is such which gives rise to an apprehension that such a person is likely to default in appearance and not cooperate with the trial. In such eventuality, therefore, the Magistrate is to express his opinion in categoric terms. 9. With regard to the impugned order, even though it does not smack of any illegality, yet considering the fact that the petitioner is an employee of a company which is based in Gujarat and the allegations in the complaint are prima facie against the company being represented by the petitioner, I deem it appropriate to direct that the petitioner shall be exempted from personal appearance before the Court of Addl. Chief Judicial Magistrate, Barnala subject to his filing affidavit in the following terms :- (i) undertakes to appear before the trial Court as and when so directed; (ii) undertakes that he would have no objection if the evidence is recorded in his absence; (iii) undertakes not to raise any dispute as to identity; (iv) undertakes to comply such other conditions, as may be imposed by the trial Court. 10. Liberty is granted to appear through counsel. 11. It is made clear that the petitioner would be bound by the affidavit and such conditions, as the trial Court may deem appropriate. In case the petitioner violates the terms and conditions of the affidavit, or such other terms and conditions, as may be imposed by the trial Court, trial Court shall be at liberty to proceed against the petitioner, in accordance with law. Disposed of.