In the High Court of Jharkhand at Ranchi
Cr.Rev.No.1194 of 2015
V E R S U S
State of Jharkhand through C.B.I
CORAM: HON’BLE MR. JUSTICE R.R.PRASAD
Citation; 2016 CRLJ1569
This application is directed against the order dated 12.8.2015 passed by the Additional Sessions Judge-cum-Special Judge,C.B.I, Dhanbad in R.C.No.9(A) of 2012-D whereby and whereunder application filed under Section 205 of the Code of Criminal Procedure for dispensation of the personal attendance was rejected.
Before adverting to the submissions advanced on behalf of the petitioner, the facts upon which the case was registered under Section 120B read with Sections 420,468,471, 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act are that one Suman Kumar, Sr. Additional Chief Accounts Officer, DVC, Bokaro Thermal Power Station, Bokaro issued certain cheques to different proprietory firm including the firm of the petitioner M/s. Shambhu Trading Company in conspiracy with proprietors which were encashed and all these acts had been done in conspiracy with each other. The case was taken up for investigation. Upon investigation, culpability of the petitioner, who, according to the petitioner, was only named lender to the firm known as M/s. Shambhu Trading company was found and thereby charge sheet was submitted.
Upon submission of the charge sheet, an application under Section 205 of the Code of Criminal Procedure was filed which was rejected taking into account the gravity of the offence.
Being aggrieved with that order, this application has been filed. Mrs.Ritu Kumar, learned counsel appearing for the petitioner submits that the offence as alleged can be said to be serious but taking into account the role which was played by the petitioner and the fact that the money which was alleged to have been misappropriated has been refunded, the court should have allowed the application filed under Section 205 of the Code of Criminal Procedure as the petitioner happens to be a lady and that she was not managing the affairs of the business of the firm rather she was name lender.
The ground on which protection under Section 205 is being sought is not tenable as the provision of Section 205 is invokable in a petty cases which are not serious in nature and that the role being played in the commission of offence by an individual never required to be taken into account in the matter of adjudication of the issue relating to dispensation of personal attendance which would be reflected from the provision as contained in Section 205 which reads as under:
205 “Magistrate may dispense with personal
attendance of accused – (1) whenever a Magistrate
issues a summons, he may, if he sees reason so to do,
dispense with the personal attendance of the accused
and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case
may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, and, if
necessary, enforce such attendance in the manner
On going through the aforesaid provision one, at the first instance, would find that nothing is there in the said provision to indicate as to in which categories of the cases the Magistrate should exercise discretion of dispensation with the personal attendance but the clause used in the section as permit him to appear by his pleader does indicate under the scheme of the Code of Criminal Procedure about the nature of cases in which there may be invocation of the provision of Section 205 of the Code of Criminal Procedure. Under the provision, if the Magistrate doesfind that reason is there for dispensation of personal attendance, he may dispense with the personal attendance of the accused and would permit him to appear by his pleader. In that event the accused may be convicted or acquitted even in his absence but being represented through a Lawyer which is apparent from the provision as contained in Section 253 of the Code of Criminal Procedure which reads as follows:
253. “ Conviction on plea of guilty in absence of
accused in petty cases – (1) Where a summon has been
issued under section 206 and the accused desires to
plead guilty to the charge without appearing before the
Magistrate, he shall transmit to the Magistrate, by post
or by messenger, a letter containing his plea and also
the amount of fine specified in the summons.
( 2) The Magistrate may, in his discretion, convict the
accused in his absence, on his plea of guilty and
sentence him to pay the fine specified in the summons,
and the amount transmitted by the accused shall be
adjusted towards the fine, or where a pleader
authorized by the accused in this behalf pleads guilty
on behalf of the accused, the Magistrate shall record
the plea as nearly as possible in the words used by the
pleader and may, in his discretion, convict the accused
on such plea and sentence him as aforesaid.”
Sub-clause (2) of Section 253 does stipulate that the accused in
his absence may be convicted and sentenced to pay fine specified in the
summons on his plea of guilty and in other cases where the accused on
account of dispensation with personal attendance authorizes pleader to
plead guilty in a case which is summons triable, the Magistrate on the
basis of the statement made by the pleader may convict or acquit the
Further sub-clause (1) of Section 253 does stipulate that if a
summon is issued under Section 206, the accused on receipt of
summons if desires to plead guilty to the charge without appearing
before the Magistrate, he can do so through a letter and may also
transmit the amount of fine specified in the summons.
In this context, reference of Section 206 of the Code of Criminal
Procedure becomes quite necessary. The said provision reads as
“206 – Special summons in cases of petty offence –
(1) If,in the opinion of a Magistrate taking cognizance of a
petty offence, the case may be summarily disposed ofunder section 260, the Magistrate shall, except where
he is, for reasons to be recorded in writing of a contrary
opinion, issue summons to the accused requiring him
either to appear in person or by pleader before the
Magistrate on a specified date, or if he desires to plead
guilty to the charge without appearing before the
Magistrate, to transmit before the specified date, by post
or by messenger to the Magistrate, the said plea in
writing and the amount of fine specified in the summons
or if he desires to appear by pleader and to plead guilty
to the charge through such pleader, to authorize, in
writing, the pleader to plead guilty to the charge on his
behalf and to pay the fine through such pleader:
Provided that the amount of the fine specified in such
summons shall not exceed one hundred rupees.
(2) For the purpose of this section, “petty offence” means
any offence punishable only with fine not exceeding one
thousand rupees, but does not include any offence so
punishable under the Motor Vehicle Act, 1939, or under
any other law which provides for convicting the accused
person in his absence on a plea of guilty.
(3) The State Government may, by notification, specially
empower any Magistrate to exercise the powers
conferred by sub-section (1) in relation to any offence
which is compoundable under section 320 or any offence
punishable with imprisonment for a term not exceeding
three months, or with fine or with both where the
Magistrate is of opinion that, having regard to the facts
and circumstances of the case, the imposition of fine
only would meet the ends of justice.”
It does speak about the procedure to be followed by the accused in case he receives summons in petty offences. If such summon issued under Section 206 is received, the accused may even without appearing plead guilty in writing and may transmit the amount of fine or if the accused desires to appear by pleader, he may do so by authorizing his pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader.
Under the scheme of the Code these two provisions of Section 253 and 206 can be resorted to in cases of trial of summons cases whereas no such provision is there under the code with respect to trial of warrant or sessions cases as a result of which obviously the accused can not be allowed to plead guilty through his pleader. Therefore, in my view, the case in which provisions of Section 253 of the Code of Criminal Procedure can not be resorted to would be out of the purview of Section 205 of the Code of Criminal Procedure. Under the circumstances, what has emerged is that the provision of Section 205 of the Code of Criminal Procedure is not invokable in all cases, rather this is to be invoked in petty cases and the cases which are not serious in nature. Here the offences alleged against the petitioner can easily be said to be serious in nature.
In such situation, the provision of Section 205 of the Code of Criminal Procedure is not invokable. The submission which was advanced regarding role being played by a person in the commission of offence has nothing to do with the invocation of the provision as contained in Section 205 of the Code of Criminal Procedure. Thus, this application stands rejected.
( R.R.Prasad, J.)