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2015 DIGILAW 1477 (JHR)

Namita Das v. State of Jharkhand through C. B. I.

2015-11-27

R.R.PRASAD

body2015
ORDER : This application is directed against the order dated 12.8.2015 passed by the Additional Sessions Judge-cum-Special Judge, C.B.I., Dhanbad in R.C.No.9(A) of 2012-D whereby and whereunder application filed under Section 205 of the Code of Criminal Procedure for dispensation of the personal attendance was rejected. 2. Before adverting to the submissions advanced on behalf of the petitioner, the facts upon which the case was registered under Section 120B read with Sections 420, 468, 471, 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act are that one Suman Kumar, Sr. Additional Chief Accounts Officer, DVC, Bokaro Thermal Power Station, Bokaro issued certain cheques to different proprietory firm including the firm of the petitioner M/s. Shambhu Trading Company in conspiracy with proprietors which were encashed and all these acts had been done in conspiracy with each other. The case was taken up for investigation. Upon investigation, culpability of the petitioner, who, according to the petitioner, was only named lender to the firm known as M/s. Shambhu Trading company was found and thereby charge sheet was submitted. Upon submission of the charge sheet, an application under Section 205 of the Code of Criminal Procedure was filed which was rejected taking into account the gravity of the offence. 3. Being aggrieved with that order, this application has been filed. 4. Mrs. Ritu Kumar, learned counsel appearing for the petitioner submits that the offence as alleged can be said to be serious but taking into account the role which was played by the petitioner and the fact that the money which was alleged to have been misappropriated has been refunded, the court should have allowed the application filed under Section 205 of the Code of Criminal Procedure as the petitioner happens to be a lady and that she was not managing the affairs of the business of the firm rather she was name lender. 5. 5. The ground on which protection under Section 205 is being sought is not tenable as the provision of Section 205 is invokable in a petty cases which are not serious in nature and that the role being played in the commission of offence by an individual never required to be taken into account in the matter of adjudication of the issue relating to dispensation of personal attendance which would be reflected from the provision as contained in Section 205 which reads as under:- 205. Magistrate may dispense with personal attendance of accused.-(1) whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.” 6. On going through the aforesaid provision one, at the first instance, would find that nothing is there in the said provision to indicate as to in which categories of the cases the Magistrate should exercise discretion of dispensation with the personal attendance but the clause used in the section as permit him to appear by his pleader does indicate under the scheme of the Code of Criminal Procedure about the nature of cases in which there may be invocation of the provision of Section 205 of the Code of Criminal Procedure. Under the provision, if the Magistrate does find that reason is there for dispensation of personal attendance, he may dispense with the personal attendance of the accused and would permit him to appear by his pleader. In that event the accused may be convicted or acquitted even in his absence but being represented through a Lawyer which is apparent from the provision as contained in Section 253 of the Code of Criminal Procedure which reads as follows:- 253. Conviction on plea of guilty in absence of accused in petty cases.– (1) Where a summon has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons. (2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards the fine, or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.” 7. Sub-clause (2) of Section 253 does stipulate that the accused in his absence may be convicted and sentenced to pay fine specified in the summons on his plea of guilty and in other cases where the accused on account of dispensation with personal attendance authorizes pleader to plead guilty in a case which is summons triable, the Magistrate on the basis of the statement made by the pleader may convict or acquit the accused. 8. Further sub-clause (1) of Section 253 does stipulate that if a summon is issued under Section 206, the accused on receipt of summons if desires to plead guilty to the charge without appearing before the Magistrate, he can do so through a letter and may also transmit the amount of fine specified in the summons. 9. In this context, reference of Section 206 of the Code of Criminal Procedure becomes quite necessary. The said provision reads as follows:- “206. 9. In this context, reference of Section 206 of the Code of Criminal Procedure becomes quite necessary. The said provision reads as follows:- “206. Special summons in cases of petty offence.– (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader: Provided that the amount of the fine specified in such summons shall not exceed one hundred rupees. (2) For the purpose of this section, “petty offence” means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicle Act, 1939, or under any other law which provides for convicting the accused person in his absence on a plea of guilty. (3) The State Government may, by notification, specially empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable under section 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.” 10. It does speak about the procedure to be followed by the accused in case he receives summons in petty offences. It does speak about the procedure to be followed by the accused in case he receives summons in petty offences. If such summon issued under Section 206 is received, the accused may even without appearing plead guilty in writing and may transmit the amount of fine or if the accused desires to appear by pleader, he may do so by authorizing his pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader. 11. Under the scheme of the Code these two provisions of Section 253 and 206 can be resorted to in cases of trial of summons cases whereas no such provision is there under the code with respect to trial of warrant or sessions cases as a result of which obviously the accused can not be allowed to plead guilty through his pleader. Therefore, in my view, the case in which provisions of Section 253 of the Code of Criminal Procedure can not be resorted to would be out of the purview of Section 205 of the Code of Criminal Procedure. 12. Under the circumstances, what has emerged is that the provision of Section 205 of the Code of Criminal Procedure is not invokable in all cases, rather this is to be invoked in petty cases and the cases which are not serious in nature. Here the offences alleged against the petitioner can easily be said to be serious in nature. 13. In such situation, the provision of Section 205 of the Code of Criminal Procedure is not invokable. The submission which was advanced regarding role being played by a person in the commission of offence has nothing to do with the invocation of the provision as contained in Section 205 of the Code of Criminal Procedure. 14. Thus, this application stands rejected.