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2013 DIGILAW 2101 (RAJ)

Sunil Rungta v. State of Rajasthan

2013-11-26

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 9.10.2013 passed by the learned Sessions Judge, Chittorgarh in revision, whereby, the order dated 15.5.2013 passed by the learned Chief Judicial Magistrate, Chittorgarh in Criminal Regular Case No. 374/2009 rejecting the application filed by the petitioner under Section 317 Cr.P.C. and directing him to remain present personally in the Court in relation to the aforesaid criminal case registered for the offences under Sections 7-A, 21, 41, 45 sub-section (3) and 95 of the Factories Act was affirmed. 2. Learned Counsel for the petitioner submits that the petitioner is a Director of M/s Rural Engineering Company Pvt. Ltd. and he resides at Kolkata (W.B.). The said company operates a factory in the District Chittorgarh, where, an accident occurred in the year 2009. A complaint for various offences under the Factories Act was filed in the Court of the learned Chief Judicial Magistrate, Chittorgarh. The petitioner was read over the substance of acquisition on 28.9.2012. Thereafter, the learned Magistrate rejected the application filed on behalf of the petitioner for permanent exemption from personal appearance. Learned Counsel submits that the witness Abdul Salim (PW-1) was examined by the learned Trial Court. The complainant Yogeshwar Vyas (PW-2) was also examined by the learned Trial Court and his cross-examination was continuing and at that point of time, the learned Trial Court revoked the order of permanent exemption from personal appearance earlier granted to the petitioner and directed him to be kept present in the Court on the next date of hearing. 3. Learned Counsel submits that there was no justification whatsoever for the learned Trial Court to have revoked the order for permanent exemption earlier granted to the petitioner. He submits that the presence of the petitioner was not required for any purpose in the Trial Court. He thus prays that the direction issued by the learned Trial Court to the petitioner to remain present personally at the trial whilst revoking the order of permanent exemption from personal appearance granted to the petitioner be quashed. 4. Learned Counsel in support of his contentions has placed reliance on the decisions rendered by the Hon'ble Apex Court in the case of Basavaraj R. Paul & Ors. v. State of Karnataka & Ors., reported in 2001 SCC (Cri.) 87 and S.V. Muzumdar & Ors. v. Gujarat State Fertilizer Co. 4. Learned Counsel in support of his contentions has placed reliance on the decisions rendered by the Hon'ble Apex Court in the case of Basavaraj R. Paul & Ors. v. State of Karnataka & Ors., reported in 2001 SCC (Cri.) 87 and S.V. Muzumdar & Ors. v. Gujarat State Fertilizer Co. Ltd. & Anr., reported in 2005 SCC (Cri.) 1020 . 5. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned Counsel for the petitioner. However, she does not dispute the fact that the petitioner had been granted a permanent exemption from the personal presence before the learned Trial Court way back in the year 2009. 6. Heard and considered the arguments advanced at the bar and perused the orders passed by the learned sub-ordinate Courts. 7. It is true that whether or not to grant exemption from personal appearance to the accused during trial is the discretion of the Court, however, the discretion once exercised should not be recalled in a mechanical fashion. The Hon'ble Apex Court in the case of 5.1/. Muzumdar (supra) held as under:- "Taking into account the fact that the cases have been pending for nearly a decade, we direct that the matter be taken up on 8.8.2005 by the Trial Court. If the appellants file applications in terms of Section 205 of the Code for dispensing with their personal attendance, the Trial Court will do to take note of the same and dispense with the personal attendance by stipulating conditions in terms of Section 205(2) of the Code. It has to be borne in mind that while dealing with an application in terms of Section 205 of the Code, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. We make it clear that if at any stage the Trial Court comes to the conclusion that the accused persons are trying to delay the completion of trial, it shall be free to refuse the prayer for dispensing with personal attendance. The Trial Court would do well to complete the trial by the end of November 2005. The parties shall cooperate in that regard. We make it clear that we have not expressed any opinion on the merits of the case." 8. The Trial Court would do well to complete the trial by the end of November 2005. The parties shall cooperate in that regard. We make it clear that we have not expressed any opinion on the merits of the case." 8. The Hon'ble Apex Court considered the issue in the above mentioned case and held that if the Court was of the genuine opinion that the accused are delaying the trial, then only, the prayer for personal exemption should be denied. 9. This is more so when the offences are of technical nature. 10. From a bare perusal of the order dated 15.5.2013 passed by the learned Chief Judicial Magistrate, Chittorgarh, it is evident that there is no such finding of the Trial Court in the aforesaid order that the accused was attempting to delay the trial of the case. Rather, the order dated 15.5.2013 does not mention any reason whatsoever as to why the order granting permanent exemption from personal appearance to the petitioner was being recalled. The witness Yogeshwar Vyas (PW-2) was being cross-examined by the Counsel for the accused. The cross-examination could not be concluded because of paucity of Court time. Therefore, by no stretch of imagination can it be conceived that the trial of the case was being attempted to be delayed at the instance of the accused. In this view of the matter, this Court is of the opinion that the order dated 15.5.2013 passed by the learned Chief Judicial Magistrate, Chittorgarh withdrawing/recalling the order granting permanent exemption from personal appearance to the petitioner is unjustified and totally uncalled for. 11. Resultantly, the misc. petition is allowed. The order dated 9.10.2013 passed by the learned Sessions Judge, Chittorgarh in revision as well as the order dated 15.5.2013 passed by the learned Chief Judicial Magistrate, Chittorgarh in Criminal Regular Case No. 374/2009 rejecting the application filed by the petitioner under Section 317 Cr.P.C. and directing him to remain present personally in the Court in relation to the aforesaid criminal case registered for the offences under Sections 7-A, 21, 41, 45 sub-section (3) and 95 of the Factories Act are hereby quashed. However, it is made clear that the learned Trial Court shall be entitled to direct the petitioner to remain present in the Court at any future stage of trial if the circumstances so warrant and for reasons to be recorded in writing.Petition allowed. *******