Md. Afsar Hussain, Pervez @ A.H. Pervez vs State of Bihar and Another

Rakesh Kumar, J.—The sole petitioner, invoking inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 7.4.2011 passed by Smt. Mausmi Singh, Judicial Magistrate 1st Class, Patna, in Complaint Case No. 760 (C) of 2010, whereby, the learned Magistrate has rejected the petition filed on behalf of the petitioner u/s 205 of the Code of Criminal Procedure for being represented through his counsel. Short fact of the case is that the opposite party No. 2, who is wife of the petitioner, filed a complaint which was registered as Complaint Case No. 760 (C) of 2010, in the Court of learned Chief Judicial Magistrate, Patna, alleging therein commission of offences by the accused persons, including the petitioner, for the offence under Sections 325. 326, 307, 498A, 147 & 148 of the Indian Penal Code. It was alleged by the complainant that her marriage was solemnized with the petitioner on 22.5.1998 according to Muslim rites and amount of "Dain Mehar" was fixed for "Nikah" as Rs. 25,001. It was alleged that after solemnization of marriage parents and family members of the complainant had given gifts and ornaments to the petitioner worth Rs. 8,00,000 and after "Ruksati" she went to her matrimonial house and it was noticed that from the very beginning behaviour of the accused persons was not satisfactory. It was also alleged that the petitioner was provided a job through brother of the complainant in Kuwait. It has also been alleged that the petitioner was frequently coming from Kuwait and several offences were committed. The accused persons, particularly the petitioner, being husband, started deserting the opposite party No. 2, the wife of petitioner. It has also been disclosed that out of wedlock of the petitioner and the opposite party No. 2, one male child namely, Belal Ahmad, was born on 13.2.2000, who was in custody of the mother i.e. the opposite party No. 2. The petitioner and family members had tortured the opposite party No. 2 mentally as well as physically, and thereafter, the complaint case was filed. The learned Chief Judicial Magistrate took cognizance of offences and transferred the case to the Court of Smt. Mausami Singh, learned Judicial Magistrate 1st Class, Patna, u/s 192 of the Code of Criminal Procedure for S.A. and trial of the ease. After coming to know about the pendency of the complaint case, the petitioner, on 10.1.2010, got a petition filed u/s 205 of the Code of Criminal Procedure, to allow him to be represented by a counsel of his choice. However, the learned Magistrate, by the impugned order i.e. the order dated 7.4.2011, has rejected the petition filed on behalf of the petitioner and fixed the case for appearance.

Sri S.N.P. Sinha, learned senior counsel, who was assisted by Sri Jitendra Narain Sinha, learned counsel for the petitioner, while assailing the impugned order has argued that the learned Magistrate has miserably failed to appreciate that the petitioner is doing job in Kuwait and from there it would be very difficult for him to regularly appear in the proceeding before the Trial Court. He submits that one of the main objects u/s 205 of the Cr.P.C. is early disposal of the proceeding before the Court below and in absence of allowing the petitioner to be represented through his counsel it would be difficult to get the trial concluded at an early date.

Sri Sinha, learned senior counsel for the petitioner, while assailing the impugned order has relied on N. Parameswaran Pillai and Another Vs. Union of India (UOI) and Another, and Manish Gai v. State of Bihar 2007 (2) Cri. LJ 1358. He has specifically referred to paragraph No. 9 and 11 of Sumit Bose Case (supra) and also referred to paragraph Nos. 6 to 9 & 11 of Manish Gai Case (supra). Learned senior counsel for the petitioner has further submitted that the opposite party No. 2 besides filing the present complaint petition had also filed a case before the learned Chief Judicial Magistrate. Patna, which was numbered as Domestic Violence Case No. 50 of 2010. It has also been pleaded that the petitioner after coming to know about the Maintenance Case had informed the opposite party No. 2 that he was ready to maintain both i.e. the opposite party No. 2 and his son according to his means, though she was a divorcee, till she did not marry. This fact has been stated in paragraph No. 7 of the petition. On aforesaid ground, it has been pleaded that it was a fit case for allowing the petitioner to be represented through his Advocate u/s 205 of the Code of Criminal Procedure. Sri Birendra Kumar Sinha learned senior counsel, who was assisted by Sri Kumar Ranjeet Ranjan has appeared on behalf of the opposite party No. 2. In this case a counter affidavit has also been filed on behalf of the opposite party No. 2. Along with the counter affidavit the complainant has brought on record a communication vide Annexure --"A" to the counter affidavit to show that the petitioner, though has not divorced the complainant till date, is taking steps for his re-marriage. It was submitted that Annexure "A" is a communication of Muslim Matrimonial Service. Com. It was argued that the petitioner is trying to solemnize his second marriage and in the complaint case before the Court below he is taking the plea that he may be represented through his counsel. It was submitted that the learned Magistrate while rejecting the petition has rightly observed that unless the petitioner appears before the Court, it would be difficult to take steps for re-conciliation in the matter. It was submitted that in such cases Courts are required to take steps for rehabilitating the complainant by way of pursuing the petitioner to keep her with him and lead peaceful conjugal life, and the learned Magistrate, according to learned senior counsel for the opposite party No. 2, while rejecting the petition, has committed no error. Besides hearing learned counsel for the parties, I have also perused the materials available on record, particularly, the impugned order.

After going through the impugned order, the Court is of the opinion, that the Learned Magistrate has rightly rejected the petition due to the reason that in the present case there was allegation against the petitioner that being husband of the opposite party No. 2 he had committed offences u/s 498A of the Indian Penal Code and unless he appears before the Court below it would be difficult for the concerned Court to persuade the petitioner for settling the dispute. The learned Magistrate has rightly observed that if such petition is allowed it would be difficult to pursue the parties for settling the dispute. So far as power of a Magistrate u/s 205 of the Code of Criminal Procedure is concerned, it has been held repeatedly, that it is a discretionary power and it has to be exercised in special facts and circumstances of a case. It has also been indicated that such power should not be exercised as a matter of course. The question relating to exercise of power u/s 205 of the Code of Criminal Procedure has been examined by the Apex Court on number of occasions. The Apex Court in a case M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, has made it clear that such power is to be exercised only in rare instances. It would be appropriate to quote paragraph No. 19 of the Bhaskar Industries Ltd. Case (supra) which is as follows:-

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 authorized counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.

So far as cases referred by learned senior counsel for the petitioner is concerned, in those cases, the petitioners were not alleged to commit an offence in their personal capacity but they were made accused in complaint cases in the capacity of Officers of respective Companies/Firms. So far present case is concerned, it is necessary that the petitioner must appear before the Court below so that the learned Court below may take steps for settling the dispute between the parties. In such cases allowing an accused to be represented u/s 205 Cr.P.C. would amount to allowing perpetuating the offence which has been noticed by this Court. In the present case on one hand the petitioner has filed petition u/s 205 of the Code of Criminal Procedure for being represented through his counsel and on the other hand, the petitioner is indulging in communication for his re-marriage, which has been communicated in Annexure "A" to the counter-affidavit i.e. communication made in Muslim Matrimonial Service. Com. In view of the facts and circumstances, I do not find any defect in the impugned order and accordingly the petition stands dismissed.