Smt. Vimla Bhatt and Others vs State of M.P.

Brij Kishore Dube, J.—This petition u/s 482 of Cr.P.C. has been filed by the petitioners herein/accused for quashing the order dated 26.4.2013 passed by the Judicial Magistrate First Class, Pichhore, District Shivpuri in Criminal Case No. 882/2012, whereby an application filed by the petitioners u/s 205 of Cr.P.C. for exemption from personal appearance of the petitioners has been rejected. Short facts of the case are that on the basis of complaint made by Rajendra Pathak, Town Inspector, a Criminal Case at Crime No. 90/2012 under Sections 353, 352, 225, 294 read with Section 34 of IPC was registered against four accused persons including the present petitioners at Police Station Pichhore, District Shivpuri. During the investigation, offence u/s 332 of IPC was added. After completing the investigation, charge-sheet was filed against four accused persons including the present petitioners under Sections 353, 352, 225, 294, 332 and 224 of IPC which was numbered as Criminal Case No. 82/2012. An application u/s 205 of Cr.P.C. was preferred by the petitioners for exemption from their personal appearance before the Trial Court. Such application was considered and dismissed on 26.4.2013 on the ground that co-accused Raju who is family member of the petitioners is absconding and the case is at initial stage. Being aggrieved thereof, this petition is being preferred by the petitioners.

Learned counsel for the petitioners submits that the impugned order is illegal, incorrect and deserves to be set aside. According to him in a petition being M. Cr. C. No. 5060/2013 u/s 482 of Cr.P.C. filed by co-accused Raju, this Court has directed him to appear before the Court below on or before 1.8.2013. The petitioners No. 2 and 3 are daughters-in-law of petitioner No. 1. The age of petitioner No. 1 is 60 years, while petitioner No. 2 is 40 years and petitioner No. 3 is 25 years. Petitioner No. 1 is old aged lady and petitioners No. 2 and 3 are having small kids and for looking after their kids, it is not possible for them to attend every date in the Court. In these circumstances, learned counsel for the petitioners submits that the impugned order passed by the Court below may be quashed and the application u/s 205 of Cr.P.C. be allowed. In support of his contention, learned counsel has placed reliance on the following decisions:

(1) M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, and

(2) R.P. Gupta Vs. State of M.P. and Another,

Learned Public Prosecutor argued in support of the impugned order and prays for rejection of the petition.

Admittedly, the petitioners are members of one family. They are facing a criminal trial for the offence punishable under Sections 353, 352, 225, 294, 332 and 224 of IPC before the Court below.

In Bhaskar Industries Ltd. (supra), the Apex Court held as under:

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 on 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.

In the case of R.P. Gupta (supra), this Court held that where nature of the offences alleged against an accused are trivial and technical offences, discretion u/s 205, Cr.P.C. to grant exemption from personal to an accused should be liberally exercised. It is wrong notion that the accused must first appear personally before he is granted exemption from personal appearance.

It has to be borne in the mind that while dealing with application in terms of Section 205 of Cr.P.C., the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. The application should not be rejected on the ground that co-accused is absconding and non-bailable warrant has been issued against him.

In view of the aforesaid, the submissions of the learned counsel for the petitioner and facts of the case, this petition is allowed. The impugned order dated 26/04/2013 passed by the Court below is set-aside and the Trial Court is directed that after rehearing the parties on the application preferred by the petitioners/accused u/s 205 of Cr.P.C., the Trial Court shall while keeping in view of the opinion as mentioned hereinabove pass suitable order. The parties are directed to appear before the Court below on or before 01/08/2013 for the said purpose. The Trial Court shall re-hear on the application preferably on the said date or on a further date to be fixed by it and thereafter, proceed further in the matter in accordance with law. With the aforesaid direction, petition stands disposed of.