Firoza Khatoon and Another vs State of Jharkhand

Amareshwar Sahay, J.—Heard learned counsel for the petitioner and learned counsel for the State.

In the present application, the petitioner has challenged the order dated 28-1-2003 passed by the Sub-Divisional Judicial Magistrate, Hazaribagh, whereby the petition filed by the petitioner before the trial Court for dispensing with their personal appearance in Court as envisaged u/s 205, Cr. P.C. has been rejected. The petitioners are accused in a case u/s 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act. The petitioners are said to be sisters of the husband of the complainant.

The learned Sub-Divisional Judicial Magistrate, Hazaribagh after taking cognizance on 4-1-2002 for the offences u/s 498A and Section 4 of Dowry Prohibition Act issued summons to the accused persons including the petitioners for their appearance in Court.

A petition u/s 205, Cr. P.C. was filed on behalf of the petitioners before the trial Court stating inter alia that the petitioner, namely, Firoza Khatoon lives in Mumbai, whereas the petitioner Afroza Khatoon lives at Chitarpur and both belong to Muslim Community and in that view of the matter they prayed for dispensing with the personal appearance in Court. Learned Magistrate considering the serious nature of the allegations made against the petitioners and considering the fact that there were allegations against the petitioners that they used to visit the place at Mumbai and used to abuse and humiliate/torture the complainant and, therefore, rejected the prayer of the petitioners. Learned counsel for the petitioner has also submitted that learned Magistrate has committed error in rejecting the application u/s 205 Cr. P.C. on the ground that in serious nature of case the provision (application) u/s 205 cannot be allowed. In support of his contention learned counsel for the petitioner relied on a decision of Patna High Court, reported in (2002) 4 Pat LJR 95.

In this judgment the learned single Judge of Patna High Court has held that if in the warrant case, where if summon has been issued instead of warrant, the provision of Section 205, Cr. P.C. shall apply. It appears that before the learned single Judge earlier decision of Patna High Court by a Division Bench reported in (1998) 1 Pat LJR 502 was not brought to the notice of the Court, wherein the Division Bench of Patna High Court has held that the provision of Section 205 is not to be used to dispense with the personal appearance of the accused facing prosecution in a serious cases involving major offences like moral turpitude or an offence punishable with a sentence of long imprisonment.

In my view, the decision of Division Bench of the Patna High Court i.e. (1998) 1 Pat LJR 502 is on sound proposition of law. Relying on the said judgment of the Division Bench, this Court is also of the opinion that legislature never intended that the provision of Section 205, Cr. P.C. should be used to dispense with the personal appearance of the accused facing prosecution in serious cases involving major offence like moral turpitude or offence punishable with a sentence of long imprisonment.

Section 205, Cr. P.C. can be used for dispensing with the personal appearance of the accused only in case of trivial in nature or petty offence in which at the first instance the Court issues summon for appearance of the accused.

However, the Court should keep in its mind the decision of the Supreme Court in M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, wherein it was held that discretion to dispense with the personal attendance should be exercised in rare cases.

In that view of the matter, I find that the learned Sub-Divisional Judicial Magistrate has not committed any error in rejecting the application of the petitioners for dispensing with the personal appearance.

In the result there is no merit in this application. It is accordingly dismissed.

However, if at any subsequent stage of the trial, any application is filed by the petitioners u/s 317, Cr. P.C. then it will be open for the trial Court to exercise such discretion in accordance with law.