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2010 DIGILAW 656 (JHR)

M. P. Singh v. State of Jharkhand

2010-06-23

D.G.R.PATNAIK

body2010
Order Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioners have filed the present application for quashing the order dated 15.7.2005 whereby, the learned court below had rejected the petitioners' prayer for their exemption from personal appearance in the case, vide C-III Case No. 342 of 1982 under Section 205 of the Code of Criminal Procedure. 2. Heard counsel for the petitioner and counsel for the State. 3. The case against the petitioners was registered on the basis of complaint filed by the Provident Fund Inspector alleging that in spite of several notices, the petitioners had failed to deposit the Linked Insurance Contributions of their employees for the month of November, 1980 to January, 1981. On the basis of the complaint, cognizance for the offence under Section 14 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, was taken against the petitioners by the court below. 4. Assailing the impugned order, learned counsel for the petitioners raises the following grounds: (i) No summon was ever served upon the petitioners informing them of the institution of the case and of the cognizance being taken for the offences against them. (ii) The petitioners happen to be the Directors of M/s Aron Chemicals (P) Ltd. living at Kolkata and they have no knowledge whatsoever about the present case. (iii) The offence is of technical nature and the petitioners being old persons, living at Kolkata, will face acute hardship and physical inconvenience, if they are compelled to appear before the trial court on each and every date. (iv) The petitioners are respectable persons and they have genuine grounds for availing the privilege of benefits under Section 205 of the Code of Criminal Procedure. The impugned order of the learned court below is bad in law and has been passed only on the ground that the discretion under Section 205 of the Code of Criminal Procedure cannot be invoked after issuance of warrant of arrest. 5. Learned counsel for the petitioners explains that the issuance of warrant of arrest against the petitioners, even without receipt of any service report of summons issued against the petitioners, is in itself illegal and contrary to the provisions of procedure in law. 5. Learned counsel for the petitioners explains that the issuance of warrant of arrest against the petitioners, even without receipt of any service report of summons issued against the petitioners, is in itself illegal and contrary to the provisions of procedure in law. Even otherwise, the provisions of Section 205 of the Code of Criminal Procedure do not debar the trial court to exercise its discretion in appropriate cases to exempt the accused persons from personal appearance. To buttress his arguments, learned counsel for the petitioners would refer to and rely upon the judgments of the Patna High Court in the case of Sumit Bose @ Sumit Ranjan Bose and Ors. vs. State of Bihar and Anr. reported in 2002(2) East. Cri.Cases 507(Pat.) [: 2002(3) PLJR 208 ] and another judgment of the Patna High Court in the case of D.K. Jhaver & Ors. vs. State of Bihar & Ors. reported in 1996 (2) East. Cri.Cases 399(Pat.). 6. On the other hand, counsel for the State would argue that the present application is totally misconceived and not maintainable. Supporting the impugned order of the learned court below, learned counsel for the State would argue that the discretion vested in the trial court under the provisions of Secti9n 205 of the Code of Criminal Procedure could not be invoked after issuance of warrant of arrest. Such discretion can be exercised only upon issuance of summons and before issuance of warrant of arrest. In support of his submissions, learned counsel would refer to and rely upon the judgment of the Kolkata High Court in the case of Ajit Kumar Chakraborty and Ors. vs. Serampore Municipality reported in 1989 Cr.L.J. 523. 7. I have heard counsel for the parties and also gone through the documents available on record including the copies of the order-sheet of the records of the trial court. 8. From perusal of the order-sheet, it appears that though. after taking cognizance of the offence against the petitioners, the learned court below had ordered for issuance of summons, but no service report of summons was ever received and even before obtaining the service report, the trial court has proceeded to issue warrants of arrest against the petitioners. 8. From perusal of the order-sheet, it appears that though. after taking cognizance of the offence against the petitioners, the learned court below had ordered for issuance of summons, but no service report of summons was ever received and even before obtaining the service report, the trial court has proceeded to issue warrants of arrest against the petitioners. The trial court appears to have rejected the prayer of the petitioners for exemption under Section 205 of the Code of Criminal Procedure only on the ground that the discretion vested under the provisions of Section 205 of the Code of Criminal Procedure cannot be invoked after issuance of warrant of arrest. 9. This view appears to be misconceived. The provisions of Section 205 of the Code of Criminal Procedure do suggest that whenever a Magistrate issues summons, he may have sufficient reasons so to do to dispense with the personal attendance of the accused and to permit him to appear through his pleader, but the provisions do not impose any legal bar in exercise of the powers under Section 205 of the Code of Criminal Procedure, when initially summons were issued to the accused person, but was not taken into custody under the process of the execution of warrant. This view has been taken after elaborate discussion of the provisions of Section 205 of the Code of Criminal Procedure and reference to several judgments, including the judgments of the Supreme Court and earlier judgments of the Patna High Court and that of other High Courts, by the learned Single Judge in the case of Sumit Bose @ Sumit Ranjan Bose (supra). As it appears, the issuance of warrant of arrest against the petitioners, even without obtaining service report of summons, earlier issued against them, IS itself contrary to the provisions of the procedure in law, as rightly pointed out by the counsel for the petitioners. 10. On careful consideration of the entire facts and circumstances of the case, it appears that the petitioners, who are the residents of Kolkata living at a far away distance from the trial court, situated at Ranchi, are facing the criminal prosecution, not on account of personal acts, but on account of their association with a corporate body. The circumstances do make out genuine grounds for exemption of the petitioners from personal attendance under the provisions of Section 205 of the Code of Criminal Procedure. 11. The circumstances do make out genuine grounds for exemption of the petitioners from personal attendance under the provisions of Section 205 of the Code of Criminal Procedure. 11. For the aforesaid reasons, this application is allowed. The impugned order of the court below is hereby set aside. The matter is remitted back to the trial court to reconsider the petitioners' prayer for exemption under the provisions of Section 205 of the Code of Criminal Procedure and to pass an appropriate order. In the event the court exercises its discretion in favour of the petitioners, it will still be at liberty to direct the petitioners to give an undertaking to the satisfaction of the court below that they would not dispute their identity at the time when the witnesses are examined by the prosecution in their absence and that they will appear before the court below as and when directed by the trial court.