Vivek Bhargava and Others vs State of Bihar

Shashank Kumar Singh, J.—These applications arise out of the same order, a? such, with the consent of the parties they have been heard together and are being disposed of by a common order and judgment

Present applications have been filed for quashing the order dated 2-12-1992 passed in Special Case No. 100 of 1990 arising out of Vigilance P.S. Case No. 54 of 1990 pending in the Court of Special Judge (Vigilance), South Bihar, Patna whereby learned Special Judge has been pleased to reject the applications of the petitioners u/s 205 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as ''the Code'') for allowing them to be represented through their counsel during the trial and has also directed for issuance of warrant of arrest against them.

learned Counsel appearing for the petitioners has tried to impress upon this Court, by going into the merit of the case, stating therein, that the petitioner''s firm were only acting as Agent and were commission holder and the actual agreement was entered into by the firm which is based in the United Kingdom and the State Government and as the present firm of which the petitioners are partners only imparted training to the persons who were to inject the medicine and in lieu thereof were to receive 5% as commission. As such according to the learned Counsel in the facts of the case, no criminal case at all is made against them.

To my mind, at this stage I am not required to enter into the merit of the prosecution case as it has not been challenged before this Court and same is subject matter of trial before the Special Court and the same can be adjudicated at the proper moment by the competent Court. The only point which was to be seen here is that as the petitioners have moved for exemption from personal appearance u/s 205 of the Code whether they should have been granted benefit under the said section by the learned Special Court or not and as to whether the Special Judge has erred in refusing the petitioners'' benefit u/s 205 of the Code.

Vivek Bhargava (petitioner in Cr. Misc. 357 of 1993), Satya Prakash Bhargava (petitioner in Cr. Misc. No. 2198 of 1993) and Pramod Bhargava (petitioner in Cr. Misc. No. 2206 of 1993) who were are the partners of the firm namely, M/s. Industrial Medical Engineers, Caxton House, New Delhi, filed a petition before the Special Judge (Vigilance), South Bihar, Patna in Special case No. 100 of 1990 arising out of Vigilance P.S. Case No. 54 of 1990 under Sections 420, 457, 468, 471, 471A and read with Sections 109 and 120B of the Indian Penal Code and Sections 13(2) and 13(1)(d) and 15 of the Prevention of Corruption Act, 1988. In their petitions for exemption from personal attendance, it had been contended that the petitioner Satya Prakash Bhargava has been suffering from heart disease and he had undergone by-pass surgery and it would be very difficult and hazardous for him to attend the Court. As regards others namely Vivek Bhargava and Pramod Bhargava, it was contended that the former was incharge of the account and administration and marketing affairs while the latter were the managing partner and they had to travel throughout the world in connection with business affair and as such, personal appearance in the Court would entail tremendous difficulties and hardship on their part and by which they would be adversely affected and the interest of the company would also be jeopardized. It was further contended that the petitioners undertake to appear in person in Court whenever directed by the Court after commencement of the trial.

In the present case, learned Special Judge in his order dated 2-12-1992 has stated that though benefit of Section 205 of the Code has to be liberally extended in trivial and technical cases, and to such accused persons who are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people, but as the present case was not of a trivial and technical nature and as the petitioners were alleged to be involved in a big racket or scandal as they had hatched up a conspiracy with the officers of the Health Department of the State of Bihar to cause wrongful loss to the State and wrongful gain to themselves, as such, their prayer.for exemption u/s 205 of the Code was refused. .

Being dissatisfied with and aggrieved by the aforementioned order, petitioners have moved the present applications. It has been stated by learned Counsel that though petitioners were partner of Industrial Medical Engineers, registered at Delhi and operating not only throughout this country but also operating in other parts of the world and specially as one of the partners Satya Prakash Bhargava was an old sick man and bad gone by-pass surgery, as such, the trial Court should have exercised its discretion in favour of the petitioners, as has been held by this Court and other courts that the said section, should be extended liberally, and should have granted exemption to the petitioners to appears through lawyer, specially, in view of undertaking of .the petitioners that in course of the trial if the personal appearance was required they would mate themselves available if and when directed.

In support of his contention, learned Counsel for the petitioners has relied upon a judgment of Kerala High Court in the case of Helen Rubber Industries Kottayam and Others Vs. State of Kerala and Others, . Though, the present decision is of single Judge in which the learned Judge has held as follows:--

...when the accused are women labourers, wage earners and other busy men, courts should as a rule grant exemption from personal appearance. Courts should see that undue harassment is not caused to the accused appearing before them....

Reliance has also been made on a case reported in 1979 BBCJ 437, Ravi Singh and Anr. v. State of Bihar. In the said case it has been held as follows :

An order refusing permission u/s 205 of the Code can, in appropriate cases, be agitated under the inherent powers of the High Court and the said power of the High Court can be exercised against an interlocutory orders also and the High Court can interfere in a situation which is an abuse of the process of the Court or for securing the ends of justice.

Reliance has also been made on a case reported in 1984 PLJR 169 S.C. Jain v. State of Bihar. In the said case, the Magistrate though earlier had allowed the exemption to the petitioner of that case u/s 205 of the Code and as such, the petitioner of the said case was appearing through his counsel. On 16-5-1981, when the counsel for the petitioner filed Hazri and be was informed by the Bench clerk that the case has been adjourned to 27-6-1981. On that date when the counsel for the petitioner went to the Court to file Hazri, he was informed by the Bench clerk that the case was fixed for explaining the accusation to the accused in .person and as such, when on 27-6-1981, a petition was filed by the counsel for the petitioner through his lawyer to explain the accusation, the same1 was rejected asking for personal appearance of the petitioner and it was stated that if he does not appear on the next day, the earlier. order of his exemption for the personal appearance u/s 205 of the Code would be cancelled and warrant of arrest issued.

This Court interferred in the said order and quashed the same as the petitioner of that case was already represented through lawyer and accusation could have been explained to him, as he was representing his client.

The learned Counsel appearing for the Vigilance department, on the other hand, has stated that in cases where the prescribed punishment was of five years and more, no exemption u/s 205 of-the Code can be granted. In this regard he has relied upon a case reported in AIR 1969 Mysore 95--Jagadguru Sachidanand Shankarabharti Swami of Sri Kudli Sringeri Matt v. State of Mysore, in which it has been held that where the offences alleged against accused are of a serious nature involving moral turpitude and punishment with imprisonment for same length, if the allegations are established by the prosecution, then, the question of status of accused while granting exemption cannot be considered.

As such, according to learned Counsel appearing for the Vigilance department in the present case though one of petitioners is old and all of them were partners of M/s. Industrial Medical Engineers based outside Bihar still as the offences alleged are immature they cannot be allowed to get benefit u/s 205 of the Code.

In the facts of the case, taking into consideration the argument of learned Counsel for the petitioners and the learned Counsel for the Vigilance department and the case relied on by them and specially in the facts of the case, as the petitioners are being prosecuted as a partners of a firm and have not indulged in any act in their individual capacity and also the fact that the actual agreement was between the State Government and a firm based in United Kingdom and also taking into consideration that one of the petitioners Satya Prakash Bhargava is concerned as he is an old and infirm man who has undergone open heart surgery, as such I am of the view that the Special Court should have granted benefit to him at least u/s 205 of the Code.

In the result his application succeeds, Cr. Misc. No. 2198 of 1993 is allowed and the impugned order passed by the Special Judge, dated 2-12-1992 directing for his personal appearance as well as warrant of arrest issued against him are quashed and the Court below is directed to grant exemption to the petitioner u/s 205 of the Code.

As far as other two applications i.e. Cr. Misc. No. 357 of 1993 and Cr. Misc. No. 2206 of 1993 are concerned, the petitioners of those Cr. Miscellaneous petitions, namely, Vivek Bhargava and Pramod Bhargava, to my mind, to meet the ends of justice, specially taking into consideration that they are partners of the Firms, a busy body, who have to travel throughout the world, they are directed to appear before the Special Judge, (Vigilance), South Bihar, Patna within two weeks from today and in pursuance of order dated 2-12-1992 passed in Special Case No. 100/90 and if they appear before the said Court, learned Court shall enlarge them on bail on furnishing bail bond to its satisfaction and shall pass other necessary orders as required.

The warrant of arrest issued against them is stayed till that date.

It is, however, clear that the above mentioned directions are subject to the undertaking to be given by the petitioners of all the three applications i.e. Cr. Misc. No. 357 of 1993, Cr. Misc. No. 2198 of 1993 and Cr. Misc. No. 2206 of 1993 before the trial Court that they will make themselves available, in person, if and when required by the Court.

All the three applications are disposed of with the directions and observations made above. Parties to bear their own cost.