Major Rahul Shanker Bhardwaj and Others vs The State of U.P and Another

Ashwani Kumar Singh, J.—Heard learned counsel for the petitioners and learned Additional Government Advocate. By means of this petition filed u/s 482 Cr.P.C. read with Section 483 Cr.P.C., the petitioners have prayed that the attendance of the petitioners during trial may be dispensed with and they may be allowed to appear through counsel before the court of Special Chief Judicial Magistrate(Custom), Lucknow in criminal case no. 1158 of 2012.

Brief facts of the case are that opposite party no. 2 Smt. Alka Shukla has initiated criminal proceedings(criminal case no. 1158 of 2012 State versus Major Rahul Shanker Bhardwaj and others arising out of case crime no. 177 of 2012 under Sections 498A, 323, 504 and 506 I.P.C. and Section 3/4 Dowry Prohibition Act, police station Ghazipur, district Lucknow) against petitioner no. 1 Major Rahul Shanker Bhardwaj, husband, petitioner no. 2 Ashok Kumar Sharma her father-in-law, petitioner no. 3 Smt. Shail Sharma, her mother-in-law and petitioner no. 4 Mohini Bhardwaj her sister-in-law.

Learned counsel for the petitioners submits that all four petitioners are on bail. The criminal proceedings initiated by opposite party no. 2 Smt. Alka Shukla are pending before the court of Special Chief Judicial Magistrate(Custom), Lucknow.

Learned counsel for the petitioners submits that petitioner no. 1 is serving in the Army and at present posted at Ranchi. Petitioner no. 2 father-in-law and petitioner no. 3 mother-in-law are aged person. Petitioner no. 4 is unmarried daughter of petitioner nos. 2 and 3 and all the three are residing together at C-8, M.B.S. Nagar Colony, Station Road, Kota Jn. District, Rajasthan-324002 i.e. they are residing far away from Lucknow court where the case is pending.

Learned counsel further submits that all the petitioners are law abiding persons and there is no intention that they want to evade the proceedings of the trial but since petitioner no. 1, who is Major in the Army and posted far away from Lucknow Court, at Ranchi is facing difficulty to obtain leave frequently. Petitioner nos. 2, 3 and 4 are also living far away and petitioner no. 4 is unmarried daughter of petitioner nos. 2 and 3, it becomes difficult for them to move from Rajasthan to Lucknow, facing uncalled hurdles like train reservations etc. to reach in time to attend court on the date fixed.

Learned counsel submits that petitioners realize that nothing is above the law but, at the same time, they humbly submit that if the Hon''ble Court may think fit in the facts and circumstance of their case, may dispense their personal attendance and allow them to make their appearance through counsel.

In support of her contentions, learned counsel for the petitioners has placed reliance on the decision of this Court in Smt. Sandhya Gupta and Another Vs. State of U.P. and Another, . Para 6 of the aforesaid reported decision is quoted below:-

More recently the apex Court has considered the law concerning dispensing of attendance by accused in certain cases and permitting appearances through counsel in the case of M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, . Paras 17 and 18 of the law report could be usefully reproduced here: 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 in 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. 18. A question could legitimately be asked-what might happen if the counsel engaged by the Accused (whose personal appearance is dispensed with) for not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

Accordingly, in the facts and circumstances and in view of the legal proposition laid down by Apex Court as well as this Court and also as contemplated in the provisions of Sections 205 and 317 Cr.P.C., the learned Magistrate may dispense with the personal attendance of the petitioners in the proceedings of criminal case no. 1158 of 2012 State versus Major Rahul Shanker Bhardwaj and others arising out of case crime no. 177 of 2012 under Sections 498A, 323, 504 and 506 I.P.C. and Section 3/4 Dowry Prohibition Act. With the aforesaid directions/observations, the petition is finally disposed of.