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2015 DIGILAW 376 (ALL)

RAMESH HANDA v. STATE OF U. P.

2015-02-25

RANJANA PANDYA

body2015
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Heard learned counsel for the applicant and learned A.G.A. for the State-respondent. 2. The present application has been filed for quashing of the order dated 12.11.2014 passed by Special Judge, Anti-Corruption (CBI) Court, Ghaziabad in Special Case No. 22 of 2013 (CBI v. S.K. Agarwal and others), under Sections 120-B, 420, 409 I.P.C. and Section 13(2) of Prevention of Corruption Act, 1988, Police Station EOW-II, New Delhi. 3. It has been contended on behalf of the applicant that initially in Criminal Misc. Application No. 9898 of 2005, vide order dated 22.8.2005 Hon’ble Amar Saran, J. was pleased to pass the following order : “Heard Sri G.S. Chaturvedi, learned Senior Advocate and Sri Samit Gopal for the applicants and Sri G.S. Hajela for the C.B.I. As the applicants are facing prosecution in a case, inter alia under the Prevention of Corruption Act. As under Section 19(3) of the Prevention of Corruption Act proceedings cannot be stayed and also as the allegations are habitual in nature, no ground is made out for quashing the proceedings at this stage. However, considering that the applicant claims to be a businessman who is a managing director of some automobile firm and he has obtained bail in this case, and keeping in view the provisions of Section 317 Cr.P.C., unless the presence of the applicant is absolutely necessary, he need not appear on each date personally and his counsel may represent him on each date. However, whenever he is needed by the Court, he shall duly appear in person. With these observations, this application stands disposed of.” 4. Thus, in view of the aforesaid order the learned trial Court has erred in passing the impugned order and rejecting the exemption application of applicant. 5. Counsel for the applicant has placed reliance upon Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and other, (2001) 7 SCC 401 , in which it has been held as under : “The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the Court, provided he has been granted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the Court, provided he has been granted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court in that particular case. “ 6. In the same context counsel for the applicant has placed reliance upon S.V. Muzumdar and others v. Gujarat State Fertilizer Co. Ltd. and another, (2005) 4 SCC 173 , in which it has been held that “the personal attendance of the accused can be dispensed with imposing certain conditions in terms of Section 205 Cr.P.C.”. 7. Section 317 Cr.P.C. which states as under : “317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.” 8. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.” 8. Sri N.I. Jafri, learned counsel appearing on behalf of C.B.I. has opposed the applicant and has submitted that the personal attendance of an accused being social worker and known to the village people is untenable. In this context, he has placed reliance upon Lily Begum v. Joy Chandra Nagbanshi, (1994) 2 SCC 39 , in which the Hon’ble Apex Court has laid down as under: “In our opinion, the reason given by the High Court to dispense with the personal attendance of the respondent (accused) by invoking the powers under Section 205 of the Code of Criminal Procedure is untenable especially in a case of this nature, wherein serious allegations are made against the respondent (accused). If such a privilege, in our opinion, is given to an accused in a case of this nature, people will lose their confidence in the administration of justice. Hence we set aside that direction and direct the respondent to appear before the trial Court on all bearings. In case, there is any extreme and exceptional circumstance brought to the satisfaction of the Court that the accused is unable to appear before the Court, the Court may consider the request, if any, made by the respondent for dispensation of his personal attendance on any particular hearing, and pass appropriate orders. However, we made it clear that the respondent should make his appearance before the trial Court on all the hearings when the material witnesses are examined. The appeal is allowed accordingly.” 9. Perusal of the copy of order sheet shows that all along the personal attendance of the present applicant was exempted by the Court below for the last many years and the evidence has been going on. By the impugned order, the trial Court has directed the applicant to be present personally. The appeal is allowed accordingly.” 9. Perusal of the copy of order sheet shows that all along the personal attendance of the present applicant was exempted by the Court below for the last many years and the evidence has been going on. By the impugned order, the trial Court has directed the applicant to be present personally. The reason has been specified that since the evidence of particular witnesses were to be examined by the C.B.I., hence, it was the initial requirement of fair trial that the accused be present at the time of examination of the witnesses, to be examined on the next date. Even the High Court while passing order in Criminal Misc. Application No. 9898 of 2005 on 22.8.2005 has specified that when the presence of the accused is absolutely necessary that whenever the trial Court needs the accused, he shall duly appear in person. Thus, it is prerogative of the trial Court to decide when the presence of the accused was necessary before the trial Court. No blank order of exempting the personal attendance was passed by the High Court. It was the duty of the applicant to obey the orders of the trial Court and present himself when directed to do so. In the present case, even after orders were passed by the trial for the applicant to present himself personally, he moved the exemption application. In so much so when the personal attendance was again exempted, he moved an application for permanent exemption on the ground that he is 70 years old, suffering from diabetes, arthritis and scheduled to undergo surgery. This would not be a ground for permanent exemption of the accused and as the trial Court has specified that his attendance is necessary while particular witnesses are being examined, hence there is no ground to interfere with the impugned order. 10. However, it is made clear that if on any particular date the applicant is unable to appear before the Court, he will be at liberty to move an application for exemption for his personal appearance before the trial Court who shall dispose of the application by a well reasoned speaking order. 11. With these observations, the application is rejected. ——————