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2012 DIGILAW 841 (PAT)

Sandeep Kumar v. State of Bihar

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
ORDER This petition under Section-482 of the Cr.P.C. has been preferred by petitioner, Sandeep Kumar, who is an accused in Special Case No. 06 of 2008, for quashing the order dated 31-05-2011 passed by learned Special Court No.-II, Vigilance Patna in the above –said Special Case No. 06 of 2008 whereby and whereunder, he disallowed the prayer of the petitioner for exemption from personal appearance under Section-205 of the Code of Criminal Procedure. 2. It would appear from perusal of Annexure-1 from this petition that one, Awadhesh Prasad Singh was made accused for the offence under Section-13(2) read with 13(1)(C) of Prevention of Corruption Act on the charges that while working in different capacities in irrigation/miner irrigation department of Government of Bihar during the period from 1.1.1980 to 31.12.2007, he has amassed huge assets through corrupt and illegal means and/or by abusing his official position as a public servant, which was disproportionate to the known sources to his income. 3. It would appear that in course of investigation, this petitioner is said to have created false evidence with intent to help the main accused, Awadhesh Prasad Singh who happens to be father of the petitioner and, accordingly, the petitioner was also charge sheeted in the above-said case. 4. It would appear from the impugned order that the petition under Section-205 of the Cr.P.C. was filed on behalf of the petitioner for exemption from his personal appearance in the above-said case on the ground that presently, he is working on the post of Scientist-D, Kolkata in West Bengal in Central Pollution Control Board, Ministry of Environment and Forest, Government of India and he is suffering from several diseases, so, it is not possible for him to attend the court on each and every date. The aforesaid petition of the petitioner was rejected by the learned Special Court No.-II, Vigilance, Patna passing the impugned order dated 31.5.2011 against which, this petition has been filed. 5. Supplementary affidavit was filed on behalf of the petitioner bringing medical prescriptions of the petitioner on record. 6. I have already heard learned counsel for the petitioner as well as learned counsel appearing for Vigilance and with consent of both the parties; this petition is being disposed of at the stage of admission itself. 7. 5. Supplementary affidavit was filed on behalf of the petitioner bringing medical prescriptions of the petitioner on record. 6. I have already heard learned counsel for the petitioner as well as learned counsel appearing for Vigilance and with consent of both the parties; this petition is being disposed of at the stage of admission itself. 7. Learned counsel appearing for the petitioner submits that admittedly, the petitioner is working as Scientist in Kolkata and it is very difficult for him to attend the trial court in person on each and every date and furthermore, the petitioner is suffering from several diseases which is evident from perusal of annexures to the supplementary affidavit. It is further contended by him that the allegation levelled against the petitioner, is not of serious nature because according to prosecution case itself, he only helped his father by creating false evidence and, therefore, the entire allegation of amassing huge assets is against co-accused, Awadhesh Prasad Singh who happens to be father of the petitioner. 8. Learned counsel for the petitioner referred decisions reported in 2004(4) PLJR 25 (Jayant Dang Vs State of Bihar). 9. In the above-said decision, the Single Bench of this court based his findings on a decision of Division Bench of this court in which, it was held that no hard and fast rule could be laid down for granting relief under Section-205 of the Cr.P.C. and the court should be liberal in granting exemption in personal appearance except where serious issues or allegations of moral turpitude are involved. In the aforesaid decision, it was further held by Division Bench of this court that the nature of the allegation, conduct of the accused, inconvenience likely to be caused to the accused due to his appearance on every day in the court and the comparative advantage to the prosecution, are all relevant considerations for deciding the question of dispensing with the personal appearance. Other decisions cited on behalf of the petitioner; are 2007(1) PLJR 822 , 2002(30 PLJR 583 and Cr. Misc. No. 45235 of 2010. 10. Other decisions cited on behalf of the petitioner; are 2007(1) PLJR 822 , 2002(30 PLJR 583 and Cr. Misc. No. 45235 of 2010. 10. On the other hand, learned counsel appearing for the Vigilance opposed the prayer submitting that the petitioner has been made accused in a case registered under the provisions of Prevention of Corruption Act, 1988 and so, the offence which is said to have been committed by the petitioner, comes under the category of moral turpitude, so, the petitioner cannot get the privilege of Section-205 of the Cr.P.C. 11. Having heard the rival contentions of both the parties, I have gone through the record as well as decisions cited on behalf of the petitioner. 12. It is an admitted position that initially, Special Case No. 06 of 2008 was registered against co-accused, Awadhesh Prasad Singh who happens to be father of the petitioner and the name of this petitioner came in this case in course of investigation and it was alleged against the petitioner that he helped his father by creating false evidence and, therefore, I am of the opinion that the alleged act which is said to have been committed by the petitioner, does not come under the purview of moral turpitude. 13. It is also an admitted position that the petitioner, being a Scientist, is residing at Kolkata and he has been made accused in a case which is pending in Patna and, therefore, it is apparent that the petitioner has to take extra pain to attend the court at Patna on each and every date and it is not possible for him to make his personal appearance before Patna Court on each and every date. The impugned order of learned Special Court No.-II, Vigilance, Patna reveals that the prayer of the petitioner was rejected by concerned court only on the ground that the petitioner committed serious offence which is against the society but I am of the opinion that the learned Special Court No.-II, Vigilance, Patna has not given sound reasoning for rejecting the prayer of the petitioner and in my view, the petitioner should be granted the privilege of section-205 of the Criminal Procedure Code. 14. 14. In view of the aforesaid discussions, this petition is allowed and the impugned order dated 31-05-2011 passed in Special Case No. 06 of 2008 is, hereby, quashed, so far it relates to the petitioner and accordingly, the matter is remitted back to the Special Court No. –II, Vigilance, Patna with direction to him to pass afresh order afresh on the petition of the petitioner in accordance with law keeping in mind, the observations given in this order as well as the law laid down by the Apex Court of this country on the above-said point. 15. Accordingly, this petition stands disposed of at the stage of admission itself.