I.Syam Prasad Reddy vs State, Rep CBI

Heard Mr. Vivek Jain, learned counsel for the petitioners and Mr. K.Surender, learned Special Public Prosecutor for Central Bureau of Investigation (CBI) (as his Lordship then was).

This criminal petition has been filed by five petitioners under Section 482 of the Code of Criminal Procedure, 1973 (briefly ‘Cr.P.C’ hereinafter) to dispense with the presence of petitioner No.1 Sri I.Syam Prasad Reddy in C.C.No.26 of 2014 pending on the file of Principal Special Judge for CBI Cases, Nampally, Hyderabad (briefly ‘CBI Court’ hereinafter).

Be it stated that petitioner No.1 is Sri I.Syam Prasad Reddy who is accused No.4 in C.C.No.26 of 2014. Petitioner No.1 is the Chairman-cum-Managing Director of petitioner Nos.2 to 5 companies. Petitioner Nos.2 to 5 are accused Nos.5, 8, 10 and 13 in C.C.No.26 of 2014.

Be it stated that the erstwhile High Court of Andhra Pradesh passed order dated 10.08.2011 in W.P.Nos.794 and 6604 of 2011 directing the CBI for registration of a case and conduct investigation into allegations of financial misdeeds by the then Chief Minister of Andhra Pradesh and his son involving huge amount of government largesse, corporate dealings including huge investments as part of quid pro quo arrangement for the largesse and for the benefit obtained by the investors from the State of Andhra Pradesh and also in all other aspects.

In view of the aforesaid order, CBI, Anti Corruption Bureau (ACB), Hyderabad registered a case being RC 19 (A)/2011-CBI-Hyderabad on 17.08.2011 under Sections 120B read with Sections 420, 409 and 477A of the Indian Penal Code, 1860 (IPC) and Section 13 (2) read with Section 13 (1) (c) and (d) of the Prevention of Corruption Act, 1988 (briefly, ‘the P.C.Act’ hereinafter) against Sri Y.S.Jagan Mohan Reddy (Accused No.1) and 73 others.

After conclusion of investigation, CBI filed charge sheet being charge sheet No.20 dated 09.09.2014 in the form of final report under Section 173 Cr.P.C putting up as many as fourteen accused persons to face trial. This includes the petitioners as accused Nos.4, 5, 8, 10 and 13. This has given rise to C.C.No.26 of 2014.

It is stated that respondent CBI has filed thirteen charge sheets. All the calendar cases arising out of the charge sheets are being heard by the CBI Court.

Petitioner No.1 is a businessman carrying on business in construction. He is the Chairman-cum-Managing Director of Indu Group of Companies having its Corporate Office at 1009, Indu Fortune Fields, 13th Phase, Kukatpally, Hyderabad. Being a businessman, he is required to attend to his business duties on a regular basis. In connection with his business activities, he has to undergo travel both within India and outside India frequently, sometimes at short notices. In the circumstances, it has become difficult for him to appear before the CBI Court on each and every date.

According to the petitioners, C.C.No.26 of 2014 is not yet ready for hearing and recording of evidence. He is appearing before the CBI Court on every Friday but on one ground or the other, the cases are being adjourned particularly on the hearing of the discharge applications. Petitioner No.1 has appeared before the CBI Court from the very first day except on those dates on which he was granted exemption from personal appearance. Petitioner No.1 therefore submits that his presence on every date in C.C.No.26 of 2014 may be dispensed with. He has given an undertaking that he would appear before the CBI Court as and when his presence is directed by the learned Judge.

While learned counsel for the petitioners has reiterated what has been contended in the petition and has placed reliance on a Single Bench decision of this Court dated 20.04.2016 in criminal petition No.5574 of 2016 and on the decision of Supreme Court in Puneet Dalmia v. Central Bureau of Investigation (2020) 12 SCC 695, learned counsel for the respondent submits that the prayer made by petitioner No.1 is not supported by any documents or details to justify grant of exemption from personal appearance. Entire petition is bereft of any details. Exemption from appearance in a criminal case cannot be granted to an accused as a matter of course. Therefore, the criminal petition may be dismissed.

Submissions made by learned counsel for the parties have received the due consideration of the Court.

Petitioners have furnished a statement of contract works carried out by the petitioners for which petitioner No.1 has to visit different places in the country. However, other than such a statement, no particulars have been placed before the Court as to why petitioner No.1 should be granted exemption from personal appearance.

For examining the prayer made in the present petition, it is not necessary for the Court to delve into the allegations made against the petitioners by the respondent in the charge sheet. Suffice it to say, as per allegations made in the charge sheet, accused No.1 Sri Y.S.Jagan Mohan Reddy had exerted undue influence on his late father Dr. Y.S.Rajasekhara Reddy, who was the then Chief Minister of Andhra Pradesh, for extending benefits to the accused persons, such as, allotment of land, setting up of ports, Special Economic Zones (SEZs), licences, permissions etc, in return for which or as a quid pro quo the beneficiaries paid bribes to the accused No.1 in the form of investing in his companies at highly inflated premia.

Section 205 Cr.P.C deals with dispensation of personal attendance of an accused by a magistrate. Section 205 Cr.P.C 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 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.

14.1. From the above, we find that as per sub-section (1) of Section 205, whenever a Magistrate issues a summons, he may dispense with the personal attendance of the accused and permit him to appear by his pleader, if he sees reason so to do. However, as per sub-section (2), at any stage of the proceedings, the trying Magistrate may direct personal attendance of the accused and if necessary, enforce such attendance in the manner provided. Therefore, the Magistrate has the discretion to dispense with the personal attendance of the accused and to permit him to appear by his pleader, if he sees reason so to do. The expression reason so to do is not qualified by any word or expression to mean that the reason should be good or sufficient. The requirement of the law is that if the Magistrate sees reason, he may dispense with the personal attendance of the accused. Of course, he is empowered thereafter to direct the personal attendance of the accused at any stage of the proceedings.

In Ajit Kumar Chakraborty v. Serampore Municipality 1988 SCC OnLine Cal 118, Calcutta High Court in the facts and circumstances of the case observed that the second petitioner was a member of the West Bengal Higher Judicial Service. He had to remain busy with the case pending on his file and could not afford to attend the Court of the Sub Divisional Judicial Magistrate at Serampore on the dates fixed without serious disruption of his official work and harassment to the litigant public whose cases were pending in his Court.

This Court in M.Shyam Prasad Reddy v. State of Andhra Pradesh 1992 SCC OnLine AP 62, after referring to previous decisions held that in a case where the accused himself applies to the Court to be exempted from personal appearance, then the Court should grant the request unless Court is of the opinion that in the interest of justice, it is necessary that the accused should be present through out the course of the trial or unless there are some other good reasons for directing the presence of the accused throughout the course of the trial. It is the basic principle of criminal jurisprudence that nothing shall take place behind the back of the accused. It is on the basis of this principle that fair trial is given to the accused and that the accused is required to be present during trial.

One of the points which arose for consideration in Bhaskar Industries Limited v. Bhiwani Denim & Apparels Limited (2001) 7 SCC 401, was the plea made by the second accused before the trial Court for exempting him from personal appearance. Supreme Court posed the question to itself, when a Court feels that insisting on the personal attendance of the accused in a particular case would be too harsh on account of a variety of reasons, can’t the Court afford relief to such an accused in the matter of facing prosecution proceedings? Supreme Court answered as under:

The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case.

17.1. After referring to Section 205 CrPC, Supreme Court held that it is within the powers of the 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 on his personal presence would itself inflict enormous suffering or tribulations on the accused and the comparative advantage would be less.

Delhi High Court in Chandramauli Prasad v. State of Delhi ILR (2009) II Delhi 48, examined Section 205 CrPC in the light of the decision of the Supreme Court in Bhaskar Industries Limited (supra) and held that provisions requiring the presence of the accused which mandate that the trial be held in his presence are enacted for the benefit of the accused. If the accused person himself does not wish to avail of the right of personal appearance on every date; if he reposes the fullest confidence in the court and in his advocate, and is confident that justice will be meted out to him even in his absence, then, provided his absence does not prejudice him in any way or hinder the progress of the trial, it is not necessary for the trial court to insist on his presence. This is what the Delhi High Court held:

Provisions requiring the presence of the accused which mandate that the trial be held in his presence are enacted for the benefit of the accused and have their genesis in the limited approach of the legal system in England of the late 16th and early 17th Centuries that operated to the prejudice of the accused, such as the court of the Star Chamber. If the accused person himself does not wish to avail of the right of personal appearance on every date; if he reposes the fullest confidence in the court and in his advocate, and is confident that justice will be meted out to him even in his absence, then, provided his absence does not prejudice him in any way or hinder the progress of the trial, it is not necessary for the Trial Court to insist on his presence.

Section 205 CrPC again came up for consideration before the Supreme Court in TGN Kumar v. State of Kerala (2011) 2 SCC 772. After referring to its earlier decision in Bhaskar Industries Limited (supra), Supreme Court held as follows:

We respectfully concur with the above guidelines and while reaffirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial.

19.1. One of the criteria for exercising the power under Section 205 CrPC is that personal appearance of the accused on each and every date of trial should not result in unnecessary harassment of the accused. However, the Court must ensure that exemption from personal appearance is not abused to delay the trial.

In Hiremagalur Parthasarthy Shamaiah v. State of Bihar 2009 SCC OnLine Pat 497, Patna High Court while adverting to Section 205 CrPC and its discretionary nature, opined that power under Section 205 CrPC has to be exercised in a reasonable manner; Court should be liberal in granting exemption from personal appearance except where serious issues or allegations of moral turpitude are involved. Even after issuance of warrant, the High Court may dispense with the personal appearance in exercise of power under Section 482 CrPC if a proper case is made out for the ends of justice. In that case, the revision petitioners were high officials posted at Pune and Shillong while the trial was to be conducted at Patna. It was held that inconvenience would be caused if they were required to be present on each and every date of hearing; more so when the revision petitioners had given undertaking to be physically present in Court when so ordered by the Court. Mere fact that cognizance had been taken and the offences alleged are non-bailable cannot be reasons for rejecting the prayer under Section 205 CrPC.

Supreme Court in Sonia Gandhi v. Subramaniam Swamy MANU/SC/0325/2016, after considering the position occupied by the petitioner took the view that presence of the petitioner during the hearing before the trial court would cause more inconvenience than convenience. Accordingly, direction was issued to the effect that petitioner should be exempted from personal appearance before the trial court.

In Arvind Kejriwal v. State Crl.M.C.No.3306 of 2016 & Crl.M.A.No.14056 of 2016, dated 06.12.2016, Delhi High Court considering the nature of duties required to be performed by the petitioner being the Chief Minister of Delhi held that it would be in the interest of justice to grant permanent exemption to the petitioner from personal appearance before the trial court. Delhi High Court directed that petitioner should be exempted from appearance before the trial court and to be represented by a duly nominated counsel on his behalf, filing an affidavit to the effect that petitioner would not dispute recording of pleas made by the counsel on his behalf nor evidence in his absence; petitioner would also not dispute the identity of the witnesses nor his own identity nor raise objections of similar nature. Liberty was granted to the trial court that if it needed presence of the petitioner it could direct his presence in person. It was further directed that if the trial court found that unnecessary adjournments were being sought for by learned counsel for the petitioner, it would be at liberty to pass appropriate orders.

Petitioners have placed reliance on a Single Bench decision of this Court in criminal petition No.5574 of 2016 (M/s.Trident Life Sciences Limited v. CBI; date of order 20.04.2016). That was a petition filed for quashing the proceedings. In the course of hearing, petitioners gave up the main prayer for quashing and confined to the relief of seeking dispensing with the presence of the petitioner during trial. Considering the submissions of learned counsel for the petitioners, learned Single Judge dispensed with the presence of the petitioners who were accused Nos.5 and 8 in C.C.No.8 of 2012 except on the dates when the CBI Court would insist on their appearance.

From a perusal of the order dated 20.04.2016, no binding ratio is laid down by the learned Single Judge. It was an order passed in the facts and context of that case. Benefit granted to the petitioners of that case cannot be extended to the petitioners of the present case.

In so far Puneet Dalmia (supra) is concerned, Supreme Court adverted to its earlier decisions and also considered the scope and ambit of Section 205 Cr.P.C and thereafter granted relief to the accused petitioner.

Adverting to the facts of the present case, as already noticed above, other than stating or furnishing a statement of business deals of the petitioners, nothing has been stated about the frequent visits of petitioner No.1 to outside the city of Hyderabad. The petition is bereft of specifics. No cogent reasons or grounds have been mentioned as to why petitioner No.1 should be given general exemption from appearance in the criminal case. No general or sweeping exemption can be granted to petitioner No.1. In the circumstances, Court is not inclined to invoke its jurisdiction under Section 482 Cr.P.C. to grant general exemption from personal appearance of petitioner No.1 under Section 205 Cr.P.C. On a particular date of appearance, if petitioner No.1 is unable to appear for good reason, he may make necessary application before the CBI Court for exemption. If such application is filed, the same shall be considered by the CBI Court in accordance with law.

Subject to the above, criminal petition is dismissed. However, there shall be no order as to cost.

Miscellaneous petitions, if any, pending in this criminal petition shall stand closed.