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2015 DIGILAW 1243 (GUJ)

Jasminbhai Maheshbhai Shah v. State of Gujarat

2015-12-03

J.B.PARDIWALA

body2015
ORDER : J.B. Pardiwala, J. Since the issues involved in both the petitions are more or less the same, those were heard analogously and are being disposed of by this common order. 2. By this application under Article 227 of the Constitution of India, the petitioner-original complainant calls in question the legality and validity of the order dated 24th November, 2015 passed by the Metropolitan Magistrate, Court No. 16, Ahmedabad below application Exhibit-61 in Criminal Case No. 9868 of 2013. 3. The case of the complainant may be summarised as under: 3.1 A private complaint has been lodged in the court of the Metropolitan Magistrate at Ahmedabad for the offence punishable under sections 463, 464, 465, 295A, 120B read with section 34 of the Indian Penal Code as well as under the provisions of the Juvenile Justice Act. The complaint relates to publication of a forged Government Gazette pertaining to the "Baldiksha". It appears that cognizance was taken upon the said complaint and the same has culminated in Criminal Case No. 9868 of 2013. One Acharya Shri Kirtiyashuri Maharaj Saheb, a Jain Monk is an accused. It also appears that the pre-charge evidence is being recorded. The complainant is in the box. 3.2 It is the case of the complainant that till this date, one of the co-accused, namely, Acharya Shri Kirtiyashuri Maharaj Saheb has not remained present before the trial court. It is also the case of the complainant that although bailable warrant has been issued by the trial court, yet on one pretext or the other, the same is being evaded and all attempts are made to see that the same is not served upon the accused. 3.3 In such circumstances referred to above, the complainant preferred an application Exhibit-61 with a prayer that non-bailable warrant be issued. The learned Additional Chief Metropolitan Magistrate thought fit to reject the said application. Being dissatisfied, the complainant has come up with this application. 4. Although, this Court has not issued notice till this date, Mr. P.M. Thakkar, the learned senior advocate made a request that he may be heard on behalf of the accused Acharya Shri Kirtiyashuri Maharaj Saheb. Mr. Thakkar submitted that the accused has not been made party in this petition. 5. Mr. Gadhvi, the learned advocate appearing for the complainant submitted that the presence of the accused who is avoiding the court proceedings is necessary. Mr. Thakkar submitted that the accused has not been made party in this petition. 5. Mr. Gadhvi, the learned advocate appearing for the complainant submitted that the presence of the accused who is avoiding the court proceedings is necessary. He submitted that if the bailable warrant is not executed for one reason or the other, then the Court should have issued non-bailable warrant. He submitted relying on the provisions of section 273 of the Cr. P.C that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. He submitted that till this date, no application under section 205 of the Cr. P.C has been filed by the accused praying for dispensation with the personal attendance and permitting the accused to appear through his lawyer. 6. Mr. Thakkar, the learned senior advocate clarified that on each date of the hearing, his client has preferred an application praying for exemption through the concerned advocate and such applications have been allowed so far. 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the order impugned. 8. The impugned order passed by the Magistrate concerned is a discretionary order. The issue involved or rather raised is not one of the question of jurisdiction. Indisputably, the pre-charge evidence is being recorded. The charge is yet to be framed. For the present, I am not going into the allegations levelled by the complainant that on one pretext or the other, the execution of the bailable warrant is being evaded. At an appropriate time, if the circumstances demand, it would be open for the trial court to even issue non-bailable warrant. However, for the present, I do not find any error not to speak of any error of law warranting any interference. The trial should proceed further in accordance with law as directed. 9. Mr. Thakkar, the learned senior advocate makes a statement at the bar after taking instructions from his clients that an appropriate application under section 205 of the Code shall be filed seeking permanent exemption. The trial should proceed further in accordance with law as directed. 9. Mr. Thakkar, the learned senior advocate makes a statement at the bar after taking instructions from his clients that an appropriate application under section 205 of the Code shall be filed seeking permanent exemption. He made a further statement that his client would also give an undertaking before the trial court that he would not raise any objection as regards the legality and validity of the evidence which has been recorded so far in his absence and which may be recorded in future in the absence of the accused. 10. So far as the provisions of section 273 of the Cr. P.C. is concerned, I may refer to and rely on the decision of the Supreme Court in the case of State of Maharashtra v. Praful B. Desai reported in 2003 Criminal Law Journal 2033, wherein the Supreme Court has taken the view that section 273 provides for dispensation from personal attendance. In such a case, evidence can be recorded in the presence of the lawyer. The presence of the lawyer is just deemed to be presence of the accused. Thus, section 273 contemplates constructive presence. The actual physical presence is not a must. The view taken is that the term "presence" as used in section 273, is not used in the sense of actual physical presence. It was held that the plain reading of section 273 does not support the restrictive meaning sought to be placed by the respondents therein on the word "presence". 11. I may also refer to and rely upon the observations made by the Supreme Court in the case of S.V. Mazumdar & Ors. v. Gujarat State Fertilizer Co. Ltd. & Anr., (2005) 4 SCC 173 . In para-13, the Supreme Court observed 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 8th of August, 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. 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." 12. My observations should not be considered as giving any special privileges to the accused who I am told is a Jain Monk. In the past also, I have made myself very clear that in a court of law, everyone is equal whoever he or she may be. At an appropriate time if the accused does not turn up before the trial court, it would be open for the complainant to take appropriate steps in that regard in accordance with law. 13. The endeavour of the complainant for the present should be to see that the trial proceeds expeditiously in accordance with law. I have already passed appropriate directions for expeditious disposal of the trial. 14. In view of the above, this petition is disposed of. If any application is filed for exemption under section 205 of the Code, the same shall be considered in accordance with law on its own merit. It shall, however, stipulate the terms and conditions in terms of sub-section (2) of section 205 of the Criminal Procedure Code. If any attempt is made to prolong the proceedings by taking advantage with the order dispensing with personal attendance, it shall be open to the court to pass such order as is felt necessary. 15. It shall, however, stipulate the terms and conditions in terms of sub-section (2) of section 205 of the Criminal Procedure Code. If any attempt is made to prolong the proceedings by taking advantage with the order dispensing with personal attendance, it shall be open to the court to pass such order as is felt necessary. 15. However, again, I am clarifying that at an appropriate stage, the accused will have to remain present before the court and at that point of time, if he fails to remain present, then the court concerned may consider issuing a non-bailable warrant. 16. In view of the order passed in Special Criminal Application No. 7086 of 2015, the connected petition is also disposed of in the same terms. I may only say having regard to the relief which has been prayed for that this court has already directed the trial court to proceed further in accordance with law so far as the trial is concerned. Petition Disposed of.