G.P. Pandey and Another vs Union of India (UOI)

M.Y. Eqbal, J.—In all these revision applications filed under Sections 397/401 of the Code of Criminal Procedure in short Cr PC) the petitioners have challenged the legality and validity of order dated 11.7.2003 passed by Special Judge (Economic Offences) Ranchi by which he rejected the petition filed by the petitioners for dispensing with their personal appearance and for being allowed to appear through their advocates under the provisions of Section 205 of the Cr PC.

These cases arose out of series of complaint cases filed against the petitioners and others in the Court of Special Judge (Economic Offence) Ranchi. Petitioner No. 1 the relevant time was Director (Production) and petitioner No. 2 was Senior Manager (Finance) in the Heavy Engineering Corporation Ltd. (in short H.E.C.) Dhurwa, Ranchi. In the said complaint case allegations were made that petitioners were responsible for deduction of tax from the salary of the employees of different sections of H.E.C. and further they alleged to have defaulted in deduction of tax from the employees on 17 occasions and failed to deposit the same within a week. It was alleged that petitioners were liable u/s 270-B read with Section 278B of the Income Tax Act.

The Special Judge after taking cognizance issued summons to the petitioners and the latter on receiving summons filed an application in the Court praying to permit them to represent in these cases through their advocates. It was contended by the petitioners that they are presently holding the post of Chairman-cum-Managing Director and Deputy Chief of Finance in the Corporation and because of the nature of job they have to keep themselves busy and undertake journey to different places in connection with business of the Corporation. The Special Judge after hearing the petitioners rejected their applications holding that the offence is of serious nature and not a technical offence and therefore petitioners are not entitled to be exempted from appearance in Court and they are not entitled to get the benefits of provisions of Section 205 of the Code of Criminal Procedure.

I have heard Mr. Rajiv Ranjan, learned counsel for the petitioners and Mr. K.K. Jhunjhunwala, learned counsel for the State.

Mr. Rajiv Ranjan, learned counsel submitted that the entire allegation in the complaint is causing delay in the deduction and deposit of the amount and it is a technical offence. Learned counsel submitted that since the offences are technical in nature and minor punishment has been provided, petitioners are entitled to get the benefits of provisions of Section 205 of the Cr PC. Learned counsel relied upon the decisions in the case of D.K. Jhaver and Ors. v. State of Bihar and Ors. 1996 (2) ECC 399, in the case of Shantunu Das and Ors. v. State of Bihar and Anr. 2000 (1) ECC 170 : 2000 (3) PLJR 134, and in the case of M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, .

Mr. K.K. Jhunjhunwala on the other hand firstly submitted that allegation against the petitioners are not only committing offence under the provisions of Income Tax Act but also u/s 409 of the IPC. Learned counsel submitted that for getting benefits of Section 205 the accused person has to appear once at the first instance in response to summons and then make a prayer for appearance through lawyers.

7: For better appreciation. I would first like to refer Section 205 of the Cr PC which reads as under :

"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 this pleader.

(2) But the Magistrate inquiring into or trying the case may in his discretion, at any stage of the proceedings, direct personal attendance of the accused and if necessary, enforce such attendance in the manner herein before provided."

From bare reading of the aforesaid provision, it is manifest that it confers power on the Magistrate to dispense with personal appearance of the accused whenever summon issued and permit him to appear by pleader. It is also manifest that even in warrant cases if summon is issued the instant provision can be invoked. This power can be exercised only whenever summon is issued in the first instance but not when warrant has been issued or accused has been arrested without warrant. When warrant once issued personal attendance cannot be dispensed with accepting an application from the counsel of the accused or his agent. Normally, where offences alleged are of a serious nature involving moral turpitude and punishment with imprisonment for some length of time, benefit of the section cannot always be given to the accused.

In the case of Ram Harash Das v. State of Bihar and Ors. 1998 (1) ECC a Division Bench of Patna High Court has discussed the scope and object of Section 205 of the Cr PC at length and observed :

"The power referred to in Section 205(1) of the Code is discretionary. Even in cases, where the provision is applicable, the Magistrate has to consider the question of dispensing with the personal appearance in reasonable manner. No hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance. In petty cases, the Court should be liberal in granting exemption from personal appearance but will not exercise such power in the cases of serious nature including the offences involving moral turpitude. The Court has to consider the nature of the allegations, conduct of the accused and the inconvenience likely to be caused to the accused due to his appearance in the Court and after relevant, consideration at the time of deciding question of dispensing with the personal appearance. No categorization of cases where the power is to be exercised u/s 205 of the Code can be made but generally, pardanashin women, old and sick persons, factory workers and labourers, busy business people or public functionaries are to be given the benefit of the said provision unless as stated above, they are facing prosecution in serious offences like murder, rape, misappropriation of money, harassment to woman, etc."

In the case of M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, the Supreme Court while considering the provisions of Sections 251 and 205 of the Cr PC observed :

"Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses."

Their Lordship further observed :

"The position, therefore, boils down to this : it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interest of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorized counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."

The first submission of Mr. Jhunjhunwala, learned State counsel that for taking benefit of Section 205 Cr PC the accused person has to appear once at the first instance in response to the summons and then make prayer for exemption, has no leg to stand. As noticed above, from plain reading of the provisions of Section 205 Cr PC it is clear that on the first day the accused person in response to the summons, may file an application through the counsel or agent and make prayer for dispensing with personal attendance and permit him to appear through his pleader. It is not mandatory for an accused person to appear in person in response to the summon and then make a prayer for dispensing with personal attendance and permit to appear by his pleader.

It is well settled that no hard and fast rule can be laid down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance. It is equally well settled that the power u/s 205 Cr PC should not be exercised in cases of serious nature i.e. murder, rape, dacoity etc. including offences involving moral turpitude. The term ''moral turpitude'' being a vague expression, it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good moral. In Black''s Law Dictionary, in the area of legal ethics the offences involving moral turpitude means fraud or breach of trust. The word defines as under :

"Moral turpitude means, in general. Shameful, wickedness-so extreme a departure from social standard of honesty and moral justice or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of biaseness, vileness or depravity in the private and social duty which one person owes to another or to society in general, contrary to the accepted and customary rule of right and duty between people."

Normally discretion u/s 205 Cr PC should be exercised in favour of the labourers, wage earners and other men busy in the discharge of public duty. In the instant, case although the allegation has been made against the petitioners for committing breach of trust but there is no allegation that the petitioners, after deducting taxes misappropriated the same for their personal use instead of depositing the same with the complainant. In my view, therefore, the allegation made against the petitioners constitute a technical offence and it is not a case where the petitioners defalcated any amount or misappropriated the same.

Taking into consideration this aspect of the matter and also the fact that the petitioners are holding very responsible post and it would be inconvenient for them to appear in person in Court on every date, the Court below should have allowed the application of the petitioners u/s 205 Cr PC.

For the aforesaid reason, these applications are allowed and the impugned orders are set aside. It is held that the petitioners are entitled to exemption from appearance and they should be allowed to be represented through their lawyer unless the Court thinks their personal appearance necessary at the time of trial.