Ashish Kumar Lal vs The State of Bihar and Another

Shiva Kirti Singh, J.—Heard learned Counsel for the Petitioner, learned Counsel for the State and learned Counsel appearing on behalf of opposite party No. 2, the complainant.

Petitioner has challenged the order dated 20th February, 2002 passed in Complaint case No. 1089(C)/2001 by Judicial magistrate, Patna whereby Petitioner''s lowyer for appearance through his lawyer as per Section 205 of the Code of Criminal Procedure has been rejected.

On behalf of Petitioner reliance has been placed upon a judgment of this Court the case of Keshav Jayant Tiwary and Ors. v. The State of Bihar reported in 2001(2) PCCR 277 and it has been submitted that since the Petitioner is a business man running his business at Deoghar the State of Jharkhand and since this case is not of serious nature hence he could have been allowed the benefit of Section 205 of the Code of Criminal Procedure.

On behalf of opposite party No. 2 it was submitted that a criminal revision application is not maintainable because the interim order is interlocutory in nature. To substantiate this objection reliance has been placed upon a judgment of Kerala High Court in the case of M.N. Dinesa v. K.V. Devi 1981 CLJ 1551. On the other hand learned Counsel for the Petitioner has placed reliance upon an observation of the Apex Court in the case. Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another,

After going through the entire materials on record this Court finds that Petitioner being a business man engaged in his business at Deoghar deserves to be granted the benefit of Section 205 of the Code of Criminal Procedure in a case of present nature where the alleged amount said to be subject matter of dispute is Rs. 22,000/- and odd. No doubt cognizance has been taken u/s 420 of the Indian Penal Code besides u/s 138 of the Negotiable Instrument Act but the dispute is in the nature of business dispute and such offence cannot be categorized as a serious offence in which exercise of power u/s 205 Code of Criminal Procedure would be definitely improper. In a case of present nature asking the Petitioner to be personally present on each and every date would amount to inflicting him with a punishment before the trial can be concluded.

So far as objection on the basis of order being interlocutory in nature is concerned the judgment relied upon by both the parties ultimately refer to and rely upon a decision of the Supreme Court in the case of Madhulimaye v. State of Maharashtra 1997 (4) S.C.C. 551. That judgment made it clear that where-ever power of revision was not available on account of bar provided u/s 397(2) of the Code of Criminal Procedure the High Court can exercise its inherent power if there is an abuse of the process of the Court or if such exercise is required to secure the ends of justice. In the present case this Court is of the view that ends of justice require interference of this Court. Accordingly, this application is allowed, the impugned order is set aside and the learned Magistrate is directed to allow the Petitioner''s prayer for granting him benefit of Section 205 Code of Criminal Procedure. It is made clear that as and when required the Magistrate may exercise his power to direct the Petitioner for personal appearance under Sub-section (2) of Section 205 of the Code of Criminal Procedure.