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2009 DIGILAW 766 (CAL)

Anand Rathi v. STATE OF WEST BENGAL

2009-09-23

ASHIM KUMAR ROY

body2009
Judgment :- (1). In this criminal revisional application trie petitioners, who have been arraigned as accuseds in connection with a case instituted on a complaint relating to the offence punishable under Sections 120B/467/468/471 of the Indian Penal Code challenged an order, whereby the learned Court below refused to consider their application under Section 205 of the Code without their first appearance in Court. (2). The learned Advocate appearing on behalf of the petitioners vehemently urged that there is no bar to consider an application under Section 205 of the Code of Criminal Procedure without the accused first being appeared in Court. In support of such contention he relied on the following decisions : (i) Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors., reported in 2001 C Cr LR (SC) 481, (ii) Sunil Jhunjhunwala v. The State of West Bengal, reported in 2004 C Cr LR (Cal) 956, (iii) Dr. Sumit Sen v. State of West Bengal in C.R.R. No. 1730 of 2002 (unreported decision). On the other hand, the learned Counsel appearing on behalf of the opposite party vehemently resisted this application and submitted since the case in question in connection with which the petitioners sought for exemption under Section 205 of the Code is a warrant case, their prayer for exemption cannot be considered without their appearance in Court. In support of his contention the learned Counsel relied on the following decisions ; (i) State of Tamil Nadu v. J. Jayalalitha, reported in 2000 C Cr LR (SC) 350, (ii) V. K. Jain v. Union of India and Ors., reported in (2000)1 SCC 709 , (iii) Dr. Abhijit Sen and Anr. v. Mr. Sibendu Basu, reported in 2001 C Cr LR 227, (iv) V. S. Puri v. M/s. Sukna Tea and Industries and Anr., reported in 1998 CCrLR (Cal) 393. Learned Advocate appearing on behalf of the State supported the contention raised on behalf of the complainant/opposite party. (3). Heard the learned Advocates appearing on behalf of the parties. Perused the impugned order. Considered the case laws cited by them. (4). In connection with a case instituted on a complaint relating to offences punishable under Sections 467/468/471/120B of the Indian Penal Gode the petitioners moved an application under Section 205 of the Code praying for exemption from personal appearance during the day to day proceedings of the case. Perused the impugned order. Considered the case laws cited by them. (4). In connection with a case instituted on a complaint relating to offences punishable under Sections 467/468/471/120B of the Indian Penal Gode the petitioners moved an application under Section 205 of the Code praying for exemption from personal appearance during the day to day proceedings of the case. The aforesaid case relates to non-bailable offences which are punishable with imprisonment for a term exceeding 2 years and is a warrant case. In the case of Bhaskar Industries Ltd. v. Bhiwani Denim Apparels and Ors. (supra), while considering the law relates to the provisions of Section 205 of the Code of Criminal Procedure in connection with a summons case relating to an offence punishable under Section 138 of the Negotiable Instruments Act, it is no doubt true that Apex Court held in a summons case the question of exemption under Section 205 of the Code of any accused can very well be considered by a Magistrate even without his first appearance in Court, but the case at hand being a warrant case the ratio of the aforesaid decision has no manner of application. However, in the case of V. S. Puri v. M/s. Sukna Tea and Industries and Anr. (supra), this Honble High Court held in respect of a case relating to an offence punishable under Section 420 of the Indian Penal Code, the question of exemption Under Section 205 of the Code can be considered by the trial Court only after the accused first appeared in court and is released on bail. Top of everything, in the instant case, the offences of which the Court has taken cognizance are of very serious in nature. While punishment prescribed for the offence punishable under Section 467 of the Indian Penal Code can be extended upto imprisonment for life, the punishment prescribed for offence punishable under Section 468 of the Indian Penal Code the term of imprisonment may be extended upto 7 years. (5). Thus, in view of above, it cannot be said the order impugned suffers from any illegality or infirmity. This criminal revision has no merit and stands dismissed. (6). However, it will be open to the petitioners to renew their prayer for exemption under Section 205 of the Code after making their appearance in the Court below. (5). Thus, in view of above, it cannot be said the order impugned suffers from any illegality or infirmity. This criminal revision has no merit and stands dismissed. (6). However, it will be open to the petitioners to renew their prayer for exemption under Section 205 of the Code after making their appearance in the Court below. It is directed if such application is filed the learned Court shall dispose of the same in accordance with law at once. (7). In view of disposal of the main criminal revision, the application for interim order being CRAN No. 1888 of 2009 also stands disposed of.