Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1470 (RAJ)

J. K. Gupta v. State of Rajasthan

2013-08-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - Notice was issued to the learned Public Prosecutor. He accepts notice. With the consent of the learned counsel for the parties, the matter is heard finally. 2. The instant miscellaneous petition has been preferred by the petitioners challenging the order dated 9.5.2013 passed by the learned C.J.M., Rajsamand in Case No. 548/2007 whereby the bail bonds of the petitioners were forfeited after rejecting their exemption application. 3. Learned counsel for the petitioners submitted that the case before the trial Court is going on for arguments on charges. Number of other accused persons are not appearing in the trial Court and thus petitioner's presence in the trial Court on 9.5.2013 was not essential. Learned counsel submits that the petitioners' counsel was instructed to plead the petitioners' case and as such, there was no justification for the learned Magistrate to have refused the exemption to the petitioners. He submits that the petitioners are ready and willing to appear before tire trial Court forthwith and to participate and cooperate in the trial. He, however, submits that direction to forfeit the petitioner's bail bonds and the order to summon them through warrant of arrest was uncalled for. He thus prays that the order impugned be quashed and the petitioners be permitted to appear before the trial Court. He assures that the petitioners will co-operate in all the further proceedings and undertake to ensure that the trial is not stalled due to their absence. 4. Learned Public Prosecutor submits that the absence of the petitioners before the trial Court was going on for a long period and as such the trial Court was absolutely justified in refusing their exemption,application. 5. Heard and considered the arguments advanced at the bar. Perused the order impugned. 6. The case before the trial Court was going on for arguments on charge. The presence of the accused would be required when the charges are to be read over to them. The trial Court's order sheets reveal that numerous other accused are absenting from appearing before the trial Court. Thus, it is evidence that the proceeding of the trial is not being stalled due to the absence of the petitioners. As per the address of the petitioner provided in the petition, they are residents of Bahadurgarh (Haryana). It is not the case wherein the proceedings of the trial are being stalled because of the petitioner's absence. 7. Thus, it is evidence that the proceeding of the trial is not being stalled due to the absence of the petitioners. As per the address of the petitioner provided in the petition, they are residents of Bahadurgarh (Haryana). It is not the case wherein the proceedings of the trial are being stalled because of the petitioner's absence. 7. The Hon'ble Apex Court in the case of Chandulal Chandrakar v. Puran Mal reported in AIR 1988 SC 2163 , considered the aspect of exemption being given to the accused and held that even the direction issued by the learned Magistrate to the accused for appearing at the stage of recording of the statement under Section 313 Cr.P.C. was warranted. 8. Present is a case wherein the trial is going on at the stage of framing of charges. As and when the order framing charge is passed, the accused would be under an obligation to appear before the trial Court and answer the charge. Thus, the order passed by the learned Magistrate on 9.5.2013 refusing the exemption application and directing the accused to be summoned by warrant of arrest was uncalled for looking to the facts and circumstances of the case. 9. The issue was considered by the Hon'ble Apex Court in the case of T.G.N. Kumar v. State of Kerala reported in AIR 2011 SC 708 and it was held as under:' "The section confers a discretion on the Court to exempt an accused from personal appearance tilt such time his appearance is considered by the Court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See S.V. Muzumdar & Ors. v. Gujarat State Fertilizer Co. Ltd. & Anr.) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the Court in so far as the progress of the trial is concerned and none else." 10. (See S.V. Muzumdar & Ors. v. Gujarat State Fertilizer Co. Ltd. & Anr.) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the Court in so far as the progress of the trial is concerned and none else." 10. The Hon'ble Apex Court approved the guidelines issued earlier in Bhaskar Industries (Ltd.) v. M/s. Bhiwani Denim and Apparels Ltd., reported in AIR 2001 SC 3625 . The relevant portion of the judgment is quoted herein-below: "8. In Bhaskar Industries Ltd. (supra), this Court had laid down the following guidelines, which are to be borne in mind while dealing with an application seeking dispensation with the personal appearance of an accused in a case under Section 138 of the N.I. Act: xxx "19 it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in tire interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course." We respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial." 11. Thus, the stress which was laid by the Apex Court was on the issue as to whether presence of the accused is considered essential for the conduct of the trial. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial." 11. Thus, the stress which was laid by the Apex Court was on the issue as to whether presence of the accused is considered essential for the conduct of the trial. In the case of Bhaskar Industries (supra) the Hon'ble Apex Court considered the situation where the accused resides at a distant place and observed that in such cases the discretion can be exercised by the learned Magistrate. In the present case, the petitioner No. 1 is 78 years old man. The petitioner carry on business at Bahadurgarh which is a distant place. As such there appears no justification for cancelling the petitioner's bail bonds on 9.5.2013. That apart if at all the Magistrate felt that the presence of accused was required before it, then the accused's counsel could have been directed to keep the accused present on the next date of hearing, be that as it may. The direction issued by the learned Magistrate on 9.5.2013 to forfeit the bail bond of the petitioner and summon them through warrant of arrest does not appear to be just. 12. Accordingly, the miscellaneous petition is allowed. The order impugned dated 9.5.201 is quashed. It is directed that the petitioners shall appear before the learned Magistrate within a period of four weeks from today and furnish fresh bail bonds to the learned Magistrate's satisfaction failing which the order dated 9.5.2013 shall stand restored.Petition allowed. *******