G.P. Pandey vs Union of India

In all these revision applications filed u/s 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr. P.C.''), the petitioners have challenged the legality and validity of the order dated 11-7-2003, passed by the 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.P.C.

These cases arose out of a series of complaint cases filed against the petitioners and others in the court of Special Judge (Economic Offence), Ranchi. Petitioner No. 1 at the relevant time was a director (production) and petitioner No. 2 was a senior manager (finance) in the Heavy Engineering Corporation Ltd. (hereinafter referred to as ''the H. E. C.'') Dhurwa, Ranchi. In the said complaint case, allegations were made that the petitioners were responsible for deduction of tax from the salary of the employees of different sections of the 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 the petitioners were liable u/s 276B, 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 the job they have to keep themselves busy and undertake journey to different places in connection with the 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, the petitioners are not entitled to be exempted from appearance in court and they are not entitled to get the benefits of the 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, the petitioners are entitled to get the benefits of the provisions of section 205 of the Cr. P.C. Learned counsel relied upon the decisions in the case of D.K. Jhaver v. State of Bihar (1996) 2 East. Cr. Cases 399, in the case of Shantunu Das v. State of Bihar (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 the allegation against the petitioners are not only committing offence under the provisions of the Income Tax Act but also u/s 409 of the I. P. C. 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.

For better appreciation, I would first like to refer to section 205 of the Cr. P.C. which reads as under:

"Magistrate may dispense with personal attendance of accused.-(1) Whenever a Magistrate issues a summon, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

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

From a bare reading of the aforesaid provision, it is manifest that it confers power on the Magistrate to dispense with the personal appearance of the accused whenever summon issued and permit him to appear by a 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 once warrant is issued personal attendance cannot be dispensed with excepting on application from counsel for 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 Harsh Das v. State of Bihar (1998) 1 East C. Cases 932, a Division Bench of the Patna High Court has discussed the scope and object of section 205 of the Cr.P.C. 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 cases of serious nature, including 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 the question of dispensing with the personal appearance. No categorisation 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.P. C. observed:

"17. 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." (p. 407)

Their Lordships further observed:

"19. 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 interests 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 authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magisrate can consider all aspects and pass appropriate orders thereon before proceeding further." (p. 408)

The first submission of Mr. Jhunjhunwala learned State counsel that for taking benefit of section 205, Cr. P.C. 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 a plain reading of the provisions of section 205, Cr. P.C. it is clear that on the first day the accused person, in response to the summons, may file an application through counsel or agent and make a prayer for dispensing with the 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 permitting him 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. P.C. 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 avague 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 morals. In Black''s Law Dictionary, in the area of legal ethics offences involving moral turpitude means fraud or breach of trust. The word is defined 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 baseness, 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. P.C. 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 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 allegations 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 posts 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. P.C.

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.