Lun Karan Sureka vs The State of West Bengal & Anr

This application under Section 482 of the Code of Criminal Procedure has

been filed for quashing the petition of complaint being no. 22 of 2014 pending

before the Court of learned Judical Magistrate, 5th Court, Burdwan.

Prosecution in the form of complaint was started against M/s. Burdwan

Iron and Steel Company Pvt. Ltd. and one Sri Lun Karan Surekha for

commission of offence under Section read with Section 9(A) (A) of the Central

Excise Act, 1944. On receipt of such petition of complaint cognizance was taken by learned Chief Judicial Magistrate, Burdwan and the case was transferred to

the Court of learned Judicial Magistrate, 5th Court, Burdwan for inquiry and

trial. Learned Judicial Magistrate accordingly issued summons against the

present petitioner. The prayer of the present petitioner under Section 205 of the

Code of Criminal Procedure was rejected by learned Judicial Magistrate, 5th

Court, Burdwan. Thereafter this application under Section 482 of the Code of

Criminal Procedure has been filed challenging the entire petition of complaint on

the ground that the petitioner is a resident of Calcutta yet learned Magistrate did

not hold any inquiry as stipulated under Section 202 of the Code of Criminal

Procedure at the time of issuing summons against the petitioner and accordingly

in view of the decision reported in 2014(14) SCC 638 (Vijay Dhanuka and Ors.

Vs. Najima Mamtaj and Ors.) the order of issuance of summons ought to be set

aside.

It may be stated here that despite service of notices upon the opposite

parties, no one appeared on behalf of the opposite party.

On a plain reading of the petition of complaint, it transpires that M/s.

Burdwan Iron and Steel Company Pvt. Ltd. Is situated at G. T. Road, Saktigarh,

District- Burdwan of which the petitioner is one of the directors. The registered

office may be situated in Calcutta but that does not mean that the Magistrate is

duty bound to hold inquiry before issuance of summons against the directors of

the factory which is situated within the jurisdiction of learned Magistrate. Therefore, I find no reason to hold that the order of taking cognizance as well as

issuance of summons is bad in law.

However, learned Advocate appearing on behalf of the petitioner submitted

that the petition under Section 205 of the Code of Criminal Procedure has been

rejected by learned Magistrate without assigning any valid reason and

accordingly by invoking the jurisdiction under Section 482 of the Code of

Criminal Procedure read with Article 227 of the Constitution of India, a direction

may kindly be issued so that the application of the petitioner under Section 205

of the Code of Criminal Procedure may be allowed by the learned Magistrate. The

certified copy of order dated 05.08.2015 has been annexed with the application

wherefrom it transpires that learned magistrate has rejected the application

under Section 205 of the Code of Criminal Procedure of the petitioner holding

inter-alia that granting of such prayer of the petitioner tantamount to abuse of

process of Court. Learned Magistrate however has relied on a decision reported

in 1992 Cr.L.J. 1397 wherefrom it appears that in technical cases where no

moral turpitude is involved, where the accused are ladies old sickly persons,

factory workers, labourers and others may be exempted from personal

appearance. Admittedly, the petitioner is one of the directors of the factory and

has been residing in Calcutta. Admittedly, the petitioner is required to travel

extensively to different parts of India on short notice for the purpose of his

business. The provision under Section 205 of the Code of Criminal Procedure has

been enacted in order to provide exemption from appearance in Court of some accused during trial subject to the conditions imposed by learned Court. Mere

acceptance of such prayer under Section 205 of the Code of Criminal Procedure

does not amount to record of an order of acquittal against the accused. The

allegations levelled against the petitioner are regarding non-payment of taxes

under Central Excise Act and therefore such allegations have to be proved only

on the basis of documentary evidences. Identification of the petitioner at the

time of trial is not at all required by any stretch of imagination. In that view of

this case I find sufficient merit in the submission of learned Advocate for the

petitioner that the personal appearance of the present petitioner during the

pendency of the case may be exempted under Section 205 of the Code of Criminal

Procedure subject to the conditions to be imposed by learned Magistrate. In that

view of this case prayer for quashing the case stands rejected. However, the

order dated 05.08.2015 passed by learned Magistrate in GR case no. 20 of 2014

is set aside. Learned Magistrate is directed to rehear the said application under

Section 205 of the Code of Criminal Procedure filed by the present petitioner and

to pass necessary order in terms of the observations made in the forgoing

paragraphs.

The application is thus disposed of in terms of the aforesaid order.

Let a copy of this order be forwarded to learned Judicial Magistrate, 5th

Court, Burdwan forthwith for his information.

Stay order if there be any stands vacated.

The criminal revisional application is thus disposed of.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible