Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 669 (JHR)

Rana Anil Kumar Verma v. State of Jharkhand

2008-07-02

D.G.R.PATNAIK

body2008
Order In this revision application, petitioners have prayed for setting aside the order dated 9.6.2008 passed by Shri P. Singh, Judicial Magistrate, Ranchi in Complaint Case No. 1304 of 2006, whereby the prayer of the petitioners for their exemption from personal attendance in the case, filed under Section 205 of the Cr. PC, was rejected. 2. Facts of the case in brief is that the complainant/opposite party no. 2 filed a complaint against the petitioners on certain allegations and on the basis of which, cognizance for several offences including the offences under Sections 418, 465, 504 and 120B of the Indian Penal Code was taken against them and summons in the first instance were issued, directing them to appear and face trial. The complainant/opposite party no. 2 being dissatisfied with the order of cognizance taken for the limited offences, filed a revision application before the Sessions Court against the order of cognizance, but the same was dismissed as withdrawn. 3. The prayer of the petitioners for exemption from their personal appearance in the case was made on the ground that the petitioner no. 1 happens to be the Chairman of the Institute of Science and Management and in his official capacity, he had to travel frequently outside the town of Ranchi and, therefore, it would cause serious inconvenience to him if his personal appearance in the case is not exempted. On behalf of the petitioners no. 2, 3 and 4, the ground taken is that they being housewives and having children to look after, it would be highly inconvenient for them if they are compelled to appear before the court in course of trial on each and every date and they therefore deserve the benefit of being exempted from their personal appearance in the case. 4. Counsel for the petitioners while assailing the impugned order of the court below, submits that the learned court below has not considered the grounds advanced by the petitioners in proper perspective and has strayed into various extraneous reasons by referring to the allegations of the complainant as contained in the complaint petition as ground for rejecting the prayer. Learned counsel would explain that although, offences for which cognizance was taken by the learned court below, are warrant triable but they are bailable. Even according to the averments in the complaint petition, the allegations particularly against the lady members, are not direct. Learned counsel would explain that although, offences for which cognizance was taken by the learned court below, are warrant triable but they are bailable. Even according to the averments in the complaint petition, the allegations particularly against the lady members, are not direct. Rather, they have been accused of abetting the principal accused for the offences. In support of his prayer that the petitioners deserve exemption from their personal appearance in the case, learned counsel refers to the judgment of the Supreme Court reported in (2001)7 SCC 201 and (2005)4 SCC 173 . 5. Counsel for the State, on the other hand, argues that the provision, under Section 205 of the Cr. P.C. gives discretionary power to the Magistrate either to refuse or allow the prayer to dispense With the personal attendance of the accused persons in appropriate cases and the petitioners have not offered any special ground to allow the discretion in their favour. 6. The issue raised in this application relates to the provisions under Section 205 of the Cr. P.C., which reads as follows:- "205. 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 hereinabove provided." 7. It would be apparent from the reading of the provisions that it enables discretionary power on the Magistrate to decide as to whether personal attendance of the accused in a given case mayor may not be dispensed with. The provisions do not specify the circumstances in which the discretion mayor may not be exercised in favour of the accused. At a first reading of the Section, it would appear that the Magistrate may dispense with the personal attendance of the accused only when he issues summons to the accused and if he sees reason to dispense with the personal attendance. It may be argued that where warrants have been issued, discretion under the provision of Section 205 Cr. P.C. should not be invoked in favour of the accused. It may also be argued that invoking the provision of Section 205 Cr. It may be argued that where warrants have been issued, discretion under the provision of Section 205 Cr. P.C. should not be invoked in favour of the accused. It may also be argued that invoking the provision of Section 205 Cr. P.C. will be confined to the offence of petty nature or at best the summons triable cases. Objections on these grounds have been set at rest by the judgment of the Supreme Court in the case of Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. & Others reported in (2001) 7 SCC 401 and later in the case of S.V. Mazumdar & Others vs. Gujarat State Fertilizer Co. Ltd. reported in (2005) 4 SCC 173 . The Supreme Court has provided guidelines in the above judgment for invoking provisions of Section 205 of the Cr. P.C. and has observed that the main concern of the court is administration of criminal justice and for that purpose, court proceedings should register progress. Where the provision of Section 205 of the Cr. P.C. is invoked, the court has to consider whether any useful purpose would be served by requiring attendance of the accused or whether, progress of the trial is likely to be hampered on account of his absence. The Apex Court has also observed that discretion to dispense with the personal attendance should be exercised in rare cases such as inconvenience due to distance or any physical disability or other good reason in the interest of justice. 8. It would therefore, appear that the test basically is the assurance that the court's proceeding would not be hampered by allowing the personal attendance of the accused to be dispensed with. It would no doubt also depend upon the gravity of offence. The approach of the Magistrate should be to see whether personal attendance is absolutely necessary, for the purpose of the case. While exercising the discretion, the Magistrate should not adopt too technical or stringent approach though the discretion should not be used liberally for the mere asking of it. Regard should be had to the exceptional circumstances and inconvenience, which the accused is likely to suffer on account of distance or physical disability or for any such good reason, if his personal attendance is insisted upon on each and every date till the conclusion of the trial. 9. Regard should be had to the exceptional circumstances and inconvenience, which the accused is likely to suffer on account of distance or physical disability or for any such good reason, if his personal attendance is insisted upon on each and every date till the conclusion of the trial. 9. In the facts of the present case, it is seen that the petitioners are the residents of Ranchi and the case against them is also pending in the courts at Ranchi. As such, the plea of distance or any inconvenience caused on account of distance would not be tenable. The other plea is that the petitioners no. 2 to 4 are essentially housewives and they have to take care of their minor children and attend to their needs and, therefore it would be inconvenient for them to attend court on each and every date till the conclusion of the trial. Furthermore, a/though cognizance for the offences has been taken against the petitioners No. 2 to 4, but it is on the ground that they had conspired with the principal accused/petitioner no. 1 in committing the offences. It has also been pleaded on behalf of the petitioners that they will give their respective under takings to appear at the trial wheneever called upon by the trial court and would also undertake to waive their right of identification in the event of identification by the witnesses in their absence. The above grounds as advanced, appear to constitute certain special circumstances in respect of the petitioners no. 2 to 4. Certainly, no useful purpose would be served by insisting upon the personal attendance of the petitioners no. 2 to 4, nor is there any such circumstance to suggest a possibility that the progress of the trial is likely to be hampered on account of exempting them from their personal appearance. 10. It is noted however that while the grounds constitute special circumstances in favour of the petitioners no. 2 to 4, the same do not apply to the petitioner no. 1. The learned counsel for the petitioners has not point out any such circumstance in favour of the petitioner no. 1 to dispense with his personal appearance. 11. In the light of the above discussion, the impugned order as far as it is applicable to the petitioners no. 2 to 4, the same do not apply to the petitioner no. 1. The learned counsel for the petitioners has not point out any such circumstance in favour of the petitioner no. 1 to dispense with his personal appearance. 11. In the light of the above discussion, the impugned order as far as it is applicable to the petitioners no. 2 to 4, is hereby set aside and their prayer for their exemption from their personal appearance in the case is allowed. The impugned order as it applies to the petitioner no. 1, is however sustained. With the aforesaid observations, this application is disposed of. 12. However, before parting, it may be mentioned that the provisions of Section 205 of the Cr. P.C. while allowing discretion to the Magistrate to dispense with the personal attendance of the accused and to permit the accused to appear by his pleader, it also empowers the Magistrate to direct personal attendance of the accused at any stage of the proceeding. Therefore, even though, prayer for dispensing with the personal attendance of the petitioners no. 2 to 4 under the provisions of Section 205 of the Cr. P.C. is allowed, the trial court would be at liberty to direct their personal attendance at the time of framing of charge or at any specified date as and when the Magistrate thinks fit and proper.