Nabi Hussain Ansari vs Memuna Pawar

R.K. Bag, J.—The petitioner has preferred this criminal revision under Sections 401 and 482 of the Code of Criminal Procedure, 1973 challenging the order dated 30-11-2013 passed by learned Metropolitan Magistrate, 9th Court, Calcutta in Case No. C/258 of 2013, by which learned Magistrate granted the prayer of the Opposite Party No. 1 u/s 205 of the Code of the Criminal Procedure, 1973.

Two affidavits of service are filed on behalf of the petitioner and the same are kept with the record. It appears from the materials on record that the petitioner filed one petition of complaint before the court of learned Additional Chief Metropolitan Magistrate, Calcutta on 26-03-2013 praying for forwarding the said petition of complaint to the officer-in-charge of the concerned Police Station u/s 156(3) of the Code of Criminal Procedure for causing investigation. However, learned Magistrate refused to forward the said petition of complaint to the officer-in-charge of the concerned Police Station but took cognizance and after examination of the complainant, that is, the petitioner issued summons against the Opposite Party No. 1 for the offence u/s 420 of the Indian Penal Code. Subsequently, the Opposite Party No. 1 appeared before the court of learned Magistrate through learned advocate and prayed for exemption from personal appearance before the court of learned Magistrate u/s 205 of the Code of Criminal Procedure, 1973. The said application u/s 205 of the Code of Criminal Procedure filed by the Opposite Party No. 1 was allowed by learned Magistrate on 30-11-2013 by passing impugned order which is challenged by way of revision before this court.

Mr. Shyamal Chakraborty, learned counsel appearing on behalf of the petitioner submits that the Opposite Party No. 1 cannot pray for exemption from personal appearance before the court of learned Magistrate u/s 205 of the Code of Criminal Procedure without appearing before the court of learned Magistrate in person and without praying for bail. Mr. Chakraborty has relied on the decision of "Anand Rathi & Ors. V. State of West Bengal and Another" reported in 2010(3) CHN (Cal) 827 in support of his above contention. In the said reported case learned Magistrate refused to consider the prayer for exemption of the accused person from appearing before the court of learned Magistrate u/s 205 of the Code of Criminal Procedure without first appearance of the accused person in the court. The said order of learned Magistrate was affirmed by this court in the decision reported in 2010(3) CHN (Cal) 827 by holding that the order of refusal of the prayer for exemption from personal appearance u/s 205 of the Code of Criminal Procedure does not suffer from any illegality, because the accused can invoke the power of the court u/s 205 of the Code of Criminal Procedure after appearing before the court in person. It is pertinent to point out that in the case at hand the Opposite Party No. 1 did not appear before the court of learned Magistrate in person before praying for exemption from personal appearance u/s 205 of the Code of Criminal Procedure, 1973.

Mr. Anirban Mitra, learned counsel appearing on behalf of the Opposite Party No. 1 contends that the petitioner has started this criminal case against the Opposite Party No. 1 during the pendency of the civil suit between the parties in connection with the same transaction on which the criminal case is started. Mr. Mitra also submits that the Opposite Party No. 1 is a lady and residing at Rajasthan and on consideration of the same the learned Magistrate can very well grant the prayer for exemption of the Opposite Party No. 1 from personal appearance u/s 205 of the Code of Criminal Procedure. Mr. Mitra has relied on the decisions reported in Rana Anil Kumar Verma, Smt. Jyoti Verma, Sangita Sinha and Priti Sinha Vs. The State of Jharkhand and Tarun Kumar, in support of his contention that learned Magistrate can grant exemption from personal appearance of the accused person irrespective of whether the case is summons case or warrant case when the accused is a lady and staying at a place far off from the court where the case is pending.

On perusal of the decision of Rana Anil Kumar Verma, Smt. Jyoti Verma, Sangita Sinha and Priti Sinha Vs. The State of Jharkhand and Tarun Kumar, , I find that the Jharkhand High Court has held that in exercising the discretion u/s 205 of the Code of Criminal Procedure, learned Magistrate should not adopt too technical or stringent approach, but should consider the exceptional circumstances and inconvenience faced by the accused person in attending the court on account of distance or physical disability or for any other good reason. This decision of the Jharkhand High Court does not indicate whether the accused person can be exempted from appearing in person before the court u/s 205 of the Code of Criminal Procedure without first making appearance in person before the concerned court and as such the said decision is not relevant for the purpose of deciding the issue involved in this criminal revision.

On consideration of the decision of the Patna High Court in the case of Hiremagalur Parthsarthy Shamalah @ H.P. Shamala @ A. Shyamla Vs. The State of Bihar and Pramod Kumar Singh, I find that the court should consider the nature of adjudication, conduct of the accused, inconvenience faced by the accused in making personal appearance before the court for the purpose of deciding the question of exemption of personal appearance u/s 205 of the Code of Criminal Procedure, 1973. In the instant case the Patna High Court has not decided the issue whether the accused person can be exempted from personal appearance before the court u/s 205 of the Code of Criminal Procedure without first making appearance in person before the court and as such the decision is not relevant for the purpose of deciding the issue involved in this criminal revision.

I have also considered the decision of the Patna High Court in the case of Sheela Kumar and Others Vs. State of Bihar wherein the Patna High Court has laid as follows in paragraph 47:

The findings arrived at, after noticing various decisions and principles is summed up as follow:

(A) Where summon is issued at the first instance, whether it may be in summons case or warrant case, application u/s 205 of the Code can be allowed in categories as follows:

(i) If accused resides or carries on business at a far off place.

(ii) On account of physical reasons.

(iii) If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less.

(iv) Purdanashin women.

(v) Old and sick person.

(vi) Factory workers and labourers.

(vii) Busy business people or public functionaries.

(viii) Corporate employees.

(B) The aforesaid categories are illustrative and not exhaustive.

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It is crystal clear from the above decision of the Patna High Court that the accused person can invoke the provision of Section 205 of the Code of Criminal Procedure even in a warrant case on fulfillment of some conditions. However, even in this case the Patna High Court has not decided the issue whether the accused person can invoke the provision of Section 205 of the Code of Criminal Procedure without first appearing in person before the court and as such this decision also is not relevant for the purpose of deciding the issue involved in this criminal revision.

In view of my above findings, I would like to rely on the decision of "Anand Rathi & Ors. V. State of West Bengal and Another" reported in 2010(3) CHN (Cal) 827 and hold that the Opposite Party No. 1 can renew his prayer for exemption from personal appearance u/s 205 of the Code of Criminal Procedure after making her appearance in the court below and not before that. Since the Opposite Party No. 1 was granted exemption from personal appearance before the court of learned Magistrate even when she did not make her personal appearance before the learned court below, the impugned order dated 30-11-2013 passed by learned Metropolitan Magistrate, 9th Court, Calcutta in Case No. C/258 of 2013 is set aside.

The criminal revision is, thus, disposed of.

Let a copy of this order be sent down to learned court below for favour of information and necessary action.

Criminal Section is directed to supply urgent certified Photostat copies of this order to the parties, if applied for, after compliance with all necessary formalities.