Amit Gupta vs Rajesh Ranka

Swatanter Kumar, J. (Oral)

By this order I propose to dispose of both Criminal Misc. Petitions No. 9612M & 20303M of 1996 (O&M).

Complainant Amit Gupta had filed a complaint under section 406, read with section 120B of Indian Penal Code, against Rajesh Ranka et cetera. The learned Magistrate had summoned all the accused to face the trial. The accused had earlier filed a petition for quashing of complaint which was dismissed by the orders of the Court dated 28.2.1996. Thereafter the accused filed an application dated 16.3.1996 seeking exemption from personal appearance before the trial Court. This application was contested by the complainant and was finally disposed of by the learned trial Court vide its order dated 8.4.1996, wherein the trial Court granted exemption from personal appearance to accused Nos. 1 to 3 in the complaint, but it declined exemption to accused Nos. 5 and 6. This being so the company was to be represented at the relevant time by accused No. 4. However, subsequently another application was filed by accused Nos. 4 and 5, seeking exemption from personal appearance. This application was declined by the learned Magistrate vide order dated 21.9.1996.

Being aggrieved from the order dated 8.4.1996, the complainant has filed petition before this Court being Criminal Misc. No. 9612M of 1996, while the accused being dissatisfied with the order dated 21.9.1996 have filed Criminal Misc. No. 20303M of 1996. Both these petitions have been filed under section 482 of the Code of Criminal Procedure (for short ''the Code'').

Based upon the above facts, the contention of the learned counsel for the petitioneraccused is that the provisions of section 205 of the Code have to be construed liberally, so as to meet the ends of justice and avoid unnecessary harassment to an accused who might have been falsely implicated in the case. According to the learned counsel for the accused, all the accused are businessmen and are responsible for daytoday conduct of the company and, as such, were entitled to the grant of exemption from personal appearance. The impugned order is stated to be contrary to the settled principles of law.

On the other hand, the contention of the learned counsel for the complainantrespondent is that the learned trial Court has rejected the application on sound reasons and in any case the trial Court had no jurisdiction to review its own order i.e. the order dated 8.4.1996, the learned counsel appearing for the complainant further submits that it is the accused who are trying to delay the proceedings before the trial Court by adopting all these tactics as earlier they had filed petition for quashing, which was dismissed. Even they have not appeared before the trial Court. As such, the proceedings before the trial Court are being unnecessarily delayed.

The basic question that falls for determination in this petition is with regard to the interpretation of Section 205 of the Code. Learned counsel for the petitioner has contended that the provisions of Section 205 of the Code must be given liberal and purposeful construction while according to the learned counsel for the respondents the ambit and scope of application of these provisions is a very limited one and an accused ought not to be granted exemption ordinarily.

The learned counsel for the petitioner has relied upon a judgment of this Court in the case of Shri Vinod Kumar Mishra etc. v. Shri Surinder Singh and another, Criminal Misc. No. 6712M of 1984, decided on 7.5.1996, wherein the learned Judge observed as under :

"The exemption from personal attendance can be dispensed with under section 205(1) Cr.P.C. while issuing the summons to an accused. It means that it is not necessary for the accused petitioners to put in appearance for seekingexemption from personal attendance. The learned trial Court has erred in holding that it is necessary for the petitioners to put in appearance for consideration of their prayer for exemption from personal attendance. Under the circumstances of this case and keeping in view the status and vocation of the petitioners it would be appropriate to allow the petitioners exemption from personal attendance in the trial Court at Jagadhri. ... ... ..."

Reliance is also sought to be placed on a judgment of Division Bench of Calcutta High Court in the case reported as Ajit Kumar Chakraborty and others v. Serampore Municipality, 1989 Crl.L.J. 523, wherein it has been observed as under :

"There is nothing in subsection (1) of Section 205, which gives even the remotest indication that in order to claim exemption from personal attendance, the accused must, at the first instance, appear personally in court. On the contrary, the subsection clearly goes to show that even at the stage of issuing summons, the Magistrate may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. The discretion may be exercised by the Magistrate even in the absence of any prayer by the accused for exemption from personal attendance.

It may be otherwise when warrant for personal attendance has been issued against the accused. But in a case where only a summons has been issued against the accused who was a member of Higher Judicial Service of the State and the offence invoked was a technical offence punishable only with fine, personal appearance of accused in Court could never be a sine qua non for consideration of his application under subsection (1) of Section 205."

The provisions of Section 205 of the Code seen in their proper perspective indicate that wide discretion is vested in the Court for granting exemption to an accused from personal appearance before the Court during enquiry or trial. Of course such discretion has to be exercised in consonance with the settled principles of law and in a judicious manner. The Court has to strike a balance between the requirement of the accused for proper and expeditious progress of the trial or enquiry on the one hand and to avoid unnecessary harassment to an accused on the other hand. No straitjacket formula can be indicated in exercise of such discretion by the Court. Ultimately it will depend upon the facts and circumstances of each case. The discretion of the Court in such matters has to be guided by well enunciated principles and factors. The Court will have to keep in mind the factors like, while exercising jurisdiction on the application of the present kind, the nature of the offence; the status of the accused; the need of the presence of the accused for the purpose of expeditious disposal of the trial; and such other factors as the Court may deem fit and proper in a given case. The present complaints have been filed under Section 406, read with Section 120B of the Indian Penal Code, which prima facie constitute an offence as the order of summoning the accused has already been upheld by this Court.

Nothing material has been argued by the learned counsel for the respondents except that there is every intention on the part of the accused to delay the proceedings before the trial Court. The order of the trial Court certainly is in consonance with the settled principles of law that the learned Magistrate has no power of review or recall its earlier order. As such, the order of the Court declining to review the order dated 8.4.1996 does not suffer from any jurisdictional error on the face of it. What is more material and requires consideration is whether the accused No. 5 and accused No. 4 obviously appearing for accused No. 6 can be granted this benefit/advantage or not. Accused No. 4 has been impleaded in his own capacity as well as he was representing accused No. 6 i.e. Modern Woollen Mills Ltd. It is conceded before me that now one Mr. Ashok Maheshwari is representing accused No. 6 and has already appeared before the trial Court and due authority in his favour in consonance with the provisions of law has been placed on the record of that Court.

Keeping in view the facts and circumstances of this case, I find no prejudice will be caused to the complainants if accused Nos. 1 to 3 are granted exemption from personal appearance, as noticed by the trial Court. However, I would modify the order to the following extent

"Accused Nos. 1 to 3 shall file an undertaking before the trial Court within three weeks from today, stating that they are appearing through the counsel and would be bound by the statements made on their behalf by the said counsel and the counsel would not withdraw from the case unless the accused personally appear before the Court. Further such undertaking would also state that they would not take any objection subsequently that the evidence or any other act, was done in their absence. Subject to this modification, the order dated 8.4.1996 is upheld. They would appear as and when directed by the trial Court.

Criminal Misc. No. 9612M of 1996 is accordingly disposed of. Criminal Misc. No. 20303M/1996 is also disposed of with the direction that Gopal Krishan Loya is hereby granted exemption from personal appearance before the trial Court, subject to the condition that said petitioner filed a proper undertaking, as aforestated, before the trial Court within three weeks from today. The request of Mr. M.L. Pamecha, Executive Directorrespondent, for grant of personal exemption has rightly been declined by the trial Court and his request is also not accepted in this petition.

It will be in the interest of all concerned that the learned trial Court deals with this complaint expeditiously and concludes the case, preferably within a period of six months from the date this order is brought to the notice of the trial Court. Accordingly both these petitions (Crl. M. 9612 M/1996 and Crl. M. 20303M/1996O&M are disposed of.