Parthasarathi vs State

Aruna Jagadeesan, J.—This criminal original petition is filed to set aside the order dated 29.8.2013 passed by the learned Special Judge (Prevention of Corruption Act), Pondicherry in Cr. M.P. No. 1019/2013 in Special CC No. 8/2010. This Criminal Revision Case is filed to set aside the Docket order dated 16.12.2013, issuing non bailable warrant against the Petitioner in Special CC No. 8/2010, passed by the learned Special Judge (Prevention of Corruption Act), Pondicherry. The Petitioner is arrayed as A3 in Special CC No. 8/2010 for the offence under Sections 120B read with 420, 468, 471 of IPC and Section 13(2) read with 13(d) of the Prevention of Corruption Act, 1988. The case of the prosecution is that during the year 2007, malpractice was noticed in the examination conducted by the Pondicherry University and marks were deliberately inflated to extend undue favour to the Students. Originally, the Petitioner/A3 and A4, the father of A3 were not shown as accused in the First Information Report. However, in the final report filed by the Respondent on 29.9.2010, A3 and A4 were added as accused along with A1 Karumari Subbarayudu, Professor and A2 N. Balasubramanian, Assistant Professor of the Pondicherry Engineering College. The case was taken on file by the learned Special Judge on 1.7.2010 and summons was issued to the accused. It appears that on 8.11.2010, the counsel filed a memo of appearance for A3 and A4 before the Trial Court. It also appears that before the final report was filed on 29.9.2010. A3 had finished his engineering graduation at Pondicherry and left for UK to pursue his higher studies and therefore, he had no knowledge about the final report filed by the Respondent adding him as an accused.

In the meanwhile, on 21.4.2011, a petition to quash the proceedings was filed before this Court on behalf of A3 and A4 in Cr. O.P. No. 9895/2011. Pending disposal of the said Criminal Original Petition, appearance of A3 was dispensed with by this court for some time and ultimately the said quash petition came to be dismissed by this court by order dated 24.1.2013. Even during the pendency of the said quash petition, the learned Public Prosecutor appearing before the Special Court filed a petition for issuance of warrant against A3 and it appears that the said petition was kept pending till 21.3.2012. The learned Judge, finding that no proper summons was served on A3 so far, directed issuance of fresh summons to A3 and thereafter, the case was adjourned for the purpose of serving summons to various dates, that is, on 6.6.2013, 24.7.2012, 22.8.2012, 28.9.2012 and 9.11.2012. Thereafter, since the summons was returned Unserved and at the instance of the learned Public Prosecutor who filed a memo for issuance of NBW against A3, the learned Judge issued NBW against A3 on 21.12.2012. The issuance of the said NBW against A3 was challenged by A3 in Cr. R.C. No. 5/2013 and this Court, after hearing both sides and considering the facts and circumstances of the case directed A3 to appear before the Trial Court on or before 15.2.2013 and get the copies of records so as to enable the Court to frame charges. This court, further, observed that in any of the future hearings, if the Petitioner/A3 was unable to appear before the court, he was directed to file an application to dispense with his personal appearance and a discretion was given to the Trial Court to consider the said application. Thereafter, a clarificatory order was passed, setting aside the NBW issued against the Petitioner. Accordingly, all of the accused including A3 appeared before the Trial Court and copies were furnished to them on 15.2.2013. There is no dispute with regard to this fact. On the very next hearing, that is on 27.3.2013, both A3 and A4 appeared before the Trial Court and filed petitions for discharge under Section 239 of Cr.P.C.. On the next hearing date, that is, on 3.4.2013, A4 was present, but however, A3 was absent, since he left for UK for reporting to his employer, since by that time he finished his studies and got employment and availability of leave from his employer became very difficult. Even in the application filed under Section 317 of Cr.P.C. in Cr. M.P. No. 426/2013 on behalf of A3 on 3.4.2013, the said fact has been mentioned and after considering the same, the Trial Court passed an order dispending with the appearance of the Petitioner/A3 on 3.4.2013. Thereafter, the case was adjourned to 10.4.2013 and in the mean while, the discharge petition was numbered as Cr. M.P. No. 425/2013 and the same was pending. Though the Trial Court has passed an order dispensing with the personal appearance of A3 on 3.4.2013, however, dismissed a similar petition filed on behalf of A3 on 10.4.2013 and issued NBW against him in Cr. M.P. No. 465/2013 dated 10.4.2013, which necessitated the Petitioner to move this court in Cr. R.C. 677/2013, challenging the order passed by the Trial Court rejecting the petition filed by the Petitioner filed under Section 317 of Cr.P.C.. This court, by order dated 27.6.2013, considering the submissions made on either side, passed an order recalling NBW issued against the Petitioner/A3 and accordingly, allowed the criminal revision petition in Cr. RC 677/2013. This court further directed the Petitioner to appear before the Trial Court on 12.8.2013 and also directed the Trial Court to pass orders on the petition filed by the accused under Section 239 of Cr.P.C. or to frame charge against the accused under Section 240 of Cr.P.C. on 12.8.2013 or any day within a week. It further taking into consideration that the petitioner is employed in UK and is unable to get frequent leave, directed him to file an application under Section 205 of Cr.P.C. and directed the Trial Court to pass orders considering the case of the Petitioner liberally.

While so, the Petitioner filed an application under Section 205 of Cr.P.C. in Cr. MP No. 1072/2013, seeking permission of the Trial Court to dispense with the personal appearance of the Petitioner and permit him to appear through his counsel, stating about his employment in UK and also the difficulty in getting leave frequently from his Employer and the danger of his losing job if he frequently applied leave and requested the Court not to insist upon his appearance on all hearings. It is seen that he has also given an undertaking in the said application that he was ready to appear before the Trial Court on the day of framing of charges, on the day of questioning under Section 313 of Cr.P.C. and also on the day of judgment. However, the said petition filed under Section 205 of Cr.P.C. was dismissed by the Trial Court on 16.12.2013 in Cr. M.P. 1072/2013 on the ground that the Petitioner was absent and that there was no representation on his behalf. According to the learned counsel for the Petitioner, since the advocates were boycotting the court, the counsel could not appear on that day.

In the said facts and circumstances, the learned counsel for the Petitioner would submit that at the instance of the Trial Court, he was compelled to file a petition seeking bail in Cr. M.P. No. 1019/2013 and the Trial Court directed the Petitioner to be released on bail on his executing a bond for a sum of Rs. 10,000/- with two sureties each for a like sum and further on his depositing the passport before the Court. It further directed that the Petitioner should appear before the Trial Court on every hearing without fail and he could not leave India without prior permission of the Trial Court. The above said order is challenged by the Petitioner.

Admittedly, the Petitioner was not in custody. The Trial Court ought not to have entertained the bail application, as it is seen from the materials placed on record that only NBW was issued against him and the same was pending.

It is well settled law that no person accused of an offence can move the court for bail under Section 437 or 439 of Cr.P.C. unless he is in custody. As per the provisions of Sections 437 and 439 of Cr.P.C., for making an application in terms of the said Sections, the person has to be in custody. Section 438 of Cr.P.C. deals with direction for grant of bail to person apprehending arrest, commonly known as anticipatory bail. In Niranjan Singh and Another Vs. Prabhakar Rajaram Kharote and Others, , the Honourable Supreme Court has held that no person accused of an offence can move the court for bail under Section 439 of Cr.P.C. unless he is in custody. In view of the clear language of Sections 437 and 439 of Cr.P.C. and in view of the decision of the Honourable Supreme Court cited supra, there cannot be any doubt that unless a person is in custody, an application for bail would not be maintainable. This question as to when a person can be said to be in custody within the meaning of Section 439 of Cr.P.C. came up for consideration before the Honourable Supreme Court. After analyzing the said crucial question, it was held in Nirmal Jeet Kaur Vs. The State of Madhya Pradesh and Another, that for making an application under Section 439 of Cr.P.C., the fundamental requirement is that the accused should be in custody, thus mandating the applicant to be in custody for making an application for bail.

In this case, there is no dispute that the Petitioner was not in custody and only NBW was pending against him. Therefore, the bail application was not maintainable and the learned Judge ought not to have passed orders entertaining the bail application. The Petitioner had moved this court for appropriate direction for recalling NBW issued against him on two different occasions and this court, after considering the submissions made by the Petitioner that he was employed in UK and that there was difficulty in availing leave frequently which would result in the Petitioner losing the job, set aside the order passed by the Trial Court issuing NBW and further directed the Trial Court to consider his case liberally. However, the Trial Court seems to have dismissed the petition filed under Section 205 of Cr.P.C. by the Petitioner for non prosecution without considering whether his personal appearance could be dispensed with on the facts stated by him in his petition which was very much before him. According to the learned counsel for the Petitioner, advocates boycotted the courts on the said date, that is on 16.12.2013 and the order came to be passed by the Trial Court without giving any opportunity of being heard to the Petitioner by adjourning the matter to the next hearing date. It is also to be noted here that the petition filed by the Petitioner for discharge is not yet disposed of. From the materials placed on record filed as additional typed set by the learned counsel for the Petitioner which is not disputed by the Respondent, it is seen that his tenure of employment has been extended periodically and it stood extended till 8.6.2014 and it is also likely that it would be extended in future also. On going through the entire materials placed record and the impugned order passed by the Trial Court, it appears that the learned judge was annoyed with the frequent petitions filed by the Petitioner to dispense with his personal appearance, however, he has failed to take note of the fact that the conduct of the Petitioner in seeking for dispensing with his personal appearance is not to avoid any trial, but however, there was a genuine reason as he would face loss of employment, if he avails leave frequently. The learned Judge has noted in the impugned order that the Petitioner absconded himself during the period from 8.11.2010 to 15.2.2013. The said comment is baseless, as the Petitioner had approached this Court during the said period for appropriate remedy as and when his petition was dismissed by the Trial Court declining to consider his genuine and proper explanation for his non appearance.

It has, now been settled by series of decisions of the Honourable Supreme court that where a person residing out of the place where the trial is being conducted by virtue of his business or otherwise is busy cannot continuously appear every hearing, he should be exempted from appearance before the Trial Court till such time his personal appearance is necessary. In this case, it has to be considered that it is bound to cause lot of hardship if the Petitioner is required to come all the way from UK to Pondicherry on each and every date of hearing. The progress of trial is not likely to be hampered especially when the Petitioner is represented by a lawyer who has full instructions and has undertaken before the Court not to seek adjournment because of absence of the Petitioner. The identity of the Petitioner is also not disputed. The Petitioner has also undertaken to appear as and when required before the Trial Court and also on the day of framing of charges, on the day of questioning under Section 313 of Cr.P.C. and also on the day of judgment. Undoubtedly, the learned judge granting exemption from personal attendance is also empowered under sub section (2) of Section 205 of Cr.P.C. to withdraw such privilege, if the presence of the accused is necessary or the accused defaulted to appear despite a direction by the Trial Court. Therefore, the approach adopted by the Trial Court in dismissing the exemption application is not reasonable.

In the present case, considering the fact that the Petitioner is employed in UK and he has difficulty in availing leave frequently and that the Petitioner is willing to give an undertaking that he is ready to appear before the Trial Court as and when required and also on the day of framing of charges, on the day of questioning under Section 313 of Cr.P.C. and also on the day of judgment. I feel that the rejection of the prayer of the Petitioner for appearing through his counsel in Court is unreasonable and therefore, the Trial Court can be directed to consider the prayer of the Petition under Section 205 of Cr.P.C. and he Petitioner can also be directed to give an undertaking before the Trial Court as stated above.

Finally, it has to be mentioned here that the Trial Court seems to have evolved a new procedure in entertaining the application seeking for grant of bail when the accused is not either in police custody or in the judicial custody. Therefore, both the impugned orders challenged in this Criminal Original Petition and the Criminal Revision Petition passed by the Trial Court are not sustainable and are liable to be set aside. In the result, these Criminal Original Petition and the Criminal Revision Petition are allowed, setting aside the order dated 29.8.2013 passed by the learned Special Judge (Prevention of Corruption Act), Pondicherry in Cr. MP No. 1019/2013 in Special CC No. 8/2010 and the Docket Order dated 16.12.2013, issuing non bailable warrant against the Petitioner in Special CC No. 8/2010 made by the learned Special Judge (Prevention of Corruption Act), Pondicherry. No costs. It is further directed that the Petitioner shall appear before the Trial Court on 15.4.2014 without fail and on his appearance, the Trial Court on 15.4.2014 without fail and on his appearance, the Trial Court shall permit him to file a fresh application under Section 205 of Cr.P.C. along with an undertaking that he will appear in Court as and when required and on such application being filed, the Trial court shall pass orders in the light of observations made by this court in this order.