Hiraman Mahata vs State of Jharkhand

Rakesh Ranjan Prasad, J.—This application has been filed for quashing of the order dated 4.8.2012 passed by the Special Judge, C.B.I., Ranchi in R.C. No. 01(A) of 2010/R whereby and whereunder application filed u/s 205 of the Code of Criminal Procedure for dispensation of the personal attendance was rejected. The case of the prosecution is that M/s. Kalawati Construction Pvt. Ltd. was awarded with a contract for special repair of Balurnath-Harhargung Road. Under the agreement, contractor was supposed to procure Bitumen from the Government Companies and was supposed to put it to use in construction of the road only after verification of the quality of the Bitumen. The contractor submitted invoices 13 in number showing procurement of Bitumen from the Government Companies. Out of it, 11 invoices were shown to have been procured from H.P.C.L., Ranchi but out of 13, 11 invoices covering 224.2548 M.T. Bitumen had never been issued by the H.P.C.L. Ranchi Depot and thereby certainly that quantity of Bitumen must not have been used but still the petitioner, the then Executive Engineer by passing the bills with respect to those invoices in conspiracy with contractor by abusing his official position facilitated him to draw the amount against the fake invoices.

The matter was investigated upon and the charge sheet was submitted, upon which cognizance of the offence was taken. Thereupon when the summon was issued, the petitioner, as per his case, since was bed ridden on account of being operated upon, filed an application u/s 205 of the Code of Criminal Procedure for dispensation of personal attendance taking a plea of infirmity on account of one of the vertebrae being fractured during road accident, as a result of which the petitioner is unable to do even the routine work without artificial devices and that bowels and bladder have gone beyond his control. That application filed u/s 205 of the Code of Criminal Procedure was rejected after taking into account the fact that allegation levelled against him is quite serious and that report called for from the Medical Board does not suggest that the petitioner is unable to move on his own.

Being aggrieved with that order, this application has been filed. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner submitted that since the petitioner sustained fracture over one of the Vertebrae, he underwent operation and remained admitted for several days and went for physiotherapy but condition of the petitioner did not improve and thereby he got himself admitted in Christian Medical College, Vellore in the month of October, 2000 for his rehabilitation as the petitioner was unable to move on his own. In spite of the treatment meted out to him there at Vellore, his condition did not improve much and ultimately, he was discharged with instruction to continue self intermittent catheterization every 4 hourly with hygiene and, therefore, under this situation, petition was filed u/s 205 of the Code of Criminal Procedure for dispensation of the personal attendance but that was rejected without giving due consideration of the case of the petitioner that the petitioner on account of physical disability is unable to appear before the court.

At the same time, the court did take into account the seriousness of the allegation while rejecting the prayer but that cannot be a ground as the provision as contained in Section 205 never does stipulate that the provision of Section 205 cannot be resorted to in a case which is considered to be serious.

Learned counsel in support of his submission has referred to a case rendered in a case of Dharmdeo Prasad vs. State of Jharkhand and another [2007(1) East Cr.C 358 (Jhr.)] where this Court when did find that the petitioner is 80 years old and is bed-ridden, unable to move frequently on account of physical disability passed an order for dispensation of the personal attendance even in a case lodged by the C.B.I. under the Prevention of Corruption Act.

Further case of Vivek Bhargava and Others Vs. State of Bihar was referred to wherein in a case lodged by the Vigilance, the court dispensed with personal attendance having found one of the petitioners old and infirm and had account of being partner in several firms.

Likewise Patna High Court in a case of Nadebasimaji vs. State of Bihar and others (1999 BCCR 820) took the same view that one who is awfully busy in his official duty and the persons having physical disability be given benefit of Section 205 of the Code of Criminal under Sections 420, 427, 406 and 506 of the Indian Penal Code.

It was further submitted that Kerala High Court in a case of Helen Rubber Industries Kottayam and Others Vs. State of Kerala and Others, has held that the Court should invariably exempt the accused who are ladies, old and sickly persons, factory workers, labourers, busy business people and industrialist.

By referring to those decisions learned counsel submitted that since there has been nothing in the statue preventing a person accused in serious offences from resorting to the provision of Section 205 of the Code of Criminal Procedure the court invariably have been allowing the person accused even in serious offence to invoke the provision of Section 205 of the Code of Criminal Procedure though in a case of Ram Harsh Das Vs. State of Bihar and Others, Division Bench of Patna High Court has held that generally Pardanashin women, old and sick persons, factory workers, labourers, busy business people or public functionaries are to be given the benefit of the said provision unless they are facing prosecution in serious offences like murder, rape, misappropriation of money, harassment to women etc. but again he would reiterate that no such categorization is there u/s 205 as to in which case the provision be resorted to or not.

Thus, it was submitted that since there has been consistent view of the courts that the persons suffering from physical disability, old age persons, women, factory workers, labourers, busy businessmen, the court should have dispensed with the personal attendance of the petitioner as admittedly the petitioner does have physical disability but by not doing so he has committed illegality and thereby the order is fit to be set aside.

The issue which has fallen for consideration is that whether the provision as contained in Section 205 of the Code of Criminal Procedure can be resorted to in a case which appears to be serious in nature.

At the outset, one needs to take notice of Section 205 of the Code of Criminal Procedure which reads as under:

205 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 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.

On going through the aforesaid provision one, at the first instance, would find that nothing is there in the said provision to indicate as to in which categories of the cases the Magistrate should exercise discretion of dispensation with the personal attendance but the clause used in the section as permit him to appear by his pleader does indicate under the scheme of the Code of Criminal Procedure about the nature of cases in which there may be invocation of the provision of Section 205 of the Code of Criminal Procedure. Under the provision, if the Magistrate does find that reason is there for dispensation of personal attendance, he may dispense with the personal attendance of the accused and would permit him to appear by his pleader. In that event the accused may be convicted or acquitted even in his absence but being represented through a Lawyer which is apparent from the provision as contained in Section 253 of the Code of Criminal Procedure which reads as follows:

Conviction on plea of guilty in absence of accused in petty cases - (1) Where a summon has been issued u/s 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards the fine, or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.

Sub-clause (2) of Section 253 does stipulate that the accused in his absence may be convicted and sentenced to pay fine specified in the summons on his plea of guilty and in other cases where the accused on account of dispensation with personal attendance authorizes pleader to plead guilty in a case which is summons triable, the Magistrate on the basis of the statement made by the pleader may convict or acquit the accused.

Further sub-clause (1) of Section 253 does stipulate that if a summon is issued u/s 206, the accused on receipt of summons if desires to plead guilty to the charge without appearing before the Magistrate, he can do so through a letter and may also transmit the amount of fine specified in the summons.

In this context, reference of Section 206 of the Code of Criminal Procedure becomes quite necessary. The said provision reads as follows:

206- Special summons in cases of petty offence-

(7) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of u/s 260, the Magistrate shall, except where he is, for reasons to be recorded in writing of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader:

Provided that the amount of the fine specified in such summons shall not exceed one hundred rupees.

(8) For the purpose of this section, "petty offence" means any offence punishable only with fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicle Act, 1939, or under any other law which provides for convicting the accused person in his absence on a plea of guilty.

(9) The State Government may, by notification, specialty empower any Magistrate to exercise the powers conferred by sub-section (1) in relation to any offence which is compoundable u/s 320 or any offence punishable with imprisonment for a term not exceeding three months, or with fine or with both where the Magistrate is of opinion that, having regard to the facts and circumstances of the case, the imposition of fine only would meet the ends of justice.

It does speak about the procedure to be followed by the accused in case he receives summons in petty offences. If such summon issued u/s 206 is received, the accused may even without appearing plead guilty in writing and may transmit the amount of fine or if the accused desires to appear by pleader, he may do so by authorizing his pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader.

Under the scheme of the Code these two provisions of Section 253 and 206 can be resorted to in cases of trial of summons cases whereas no such provision is there under the code with respect to trial of warrant or sessions cases as a result of which obviously the accused can not be allowed to plead guilty through his pleader. Therefore, in my view, the case in which provisions of Section 253 of the Code of Criminal Procedure can not be resorted to would be out of the purview of Section 205 of the Code of Criminal Procedure. Here, it would be worth mentioning that if the personal attendance of accused is dispensed with under sub-section (1) of Section 205 of the Code of Criminal Procedure, the court may in his discretion in exercise of the power given under sub-section (2) of Section 205 can direct the accused at any stage of the proceedings to put his personal attendance but that can be resorted to only in the cases referred to above as stretching that provision even in cases triable by court of sessions or warrant triable cases would frustrate the scheme of the code as is there in chapter XXXIII of the Code dealing with provision as to Bail and Bonds. Sections 436 and 437 does stipulate in what cases bail to be taken and when bail may be taken in case of non-bailable offence. Further proviso to Section 437 of the Code of Criminal Procedure also takes care of the situation when a person accused in any of non-bailable offence in women, sick infirm or minor.

Under the circumstances, what has emerged is that the provision of Section 205 of the Code of Criminal Procedure is not invokeable in all cases, rather this is to be invoked in petty cases and the cases which are not serious in nature.

The same view has been propounded by the Patna High Court in a case of Ram Harsh Das vs. State of Bihar and others (supra) wherein it has been held as follows:

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 offence 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 categorization of cases where the power is to be exercised u/s 205 of the Code can be made but generally, purdanashin 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 women etc.

Similar view has been expressed by the Kerala High Court in a case of Helen Rubber Industries Kattayam and others vs. State of Kerala and others (supra) wherein it has been held as follows:

On consideration of all the aspects of the case I am of the view that in cases where the Court finds that the appearance of the accused is not necessary for a disposal of the case and where an Advocate undertakes on behalf of the accused to be present in Court the Courts should be liberal in exemption the accused from personal attendance. It is useful to remember that an Advocate before Court is a responsible officer and when he undertakes on behalf of an accused to be present in Court it has to be given due weight. Courts should be generous in extending the benefits of Sections 205, 353 and 540A to the accused. In cases which are grievous in nature involving moral turpitude, personal attendance is the rule. But in cases which are technical in nature, which do not involve moral turpitude and where the sentence is only fine, exemption should be the rule. The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels that his presence necessary for effective disposal of the case. When the accused are women labourers, wage earners and other busy men, Courts should as a rule grant exemption from personal attendance. Courts should see that undue harassment is not caused to the accused appearing before them. I wish to make it clear that the above observations are subject to the fact that in special cases where the Courts feel presence of the accused necessary, it should be insisted upon.

Of course in some of the cases referred to on behalf of the petitioner, it does appear that personal attendance has been exempted by the court but without going into the matter as to whether in a serious offence the provision of Section 205 of the Code of Criminal Procedure would be invokeable.

Here in the instant case as has been noticed above, the petitioner has been alleged to have committed offence of cheating, forgery after hatching conspiracy with other accused and has also been alleged to have committed offence under the Prevention of Corruption Act and therefore, the court below seems to be quite justified in rejecting the application u/s 205 of the Code of Criminal Procedure. Thus, this application being devoid of any merit is dismissed.