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Personal coming of Parents, kin exempted in S.498a case

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV ORS. … APPELLANTS

VERSUS

TEH STATE OF BIHAR ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This interest has been filed opposite a visualisation antiquated 17.04.2017 of a Patna High Court by that visualisation focus filed by a accused-appellants underneath Section 482 of a Code of Criminal Procedure severe a sequence antiquated 13.08.2013 upheld by a Sub-Divisional Judicial Magistrate, Patna has been discharged by a High Court.

Brief contribution compulsory to be remarkable for determining a interest are:
The second respondent filed a censure in a Court of Sub-Divisional Judicial Magistrate, Patna alleging corruption committed by a indicted as good as Arnesh Kumar, her husband. The Magistrate vide sequence antiquated 11.10.2012 anticipating a prima facie box underneath Section 498A and Section 4 of a Dowry Prohibition Act summoned a indicted as good as Arnesh Kumar, father of a complainant. The indicted as good as Arnesh Kumar filed an focus for anticipatory bail during a pendency of a pronounced application. Non-bailable warrants were released by a Magistrate on 23.12.2012. All a indicted that is appellants as good as Arnesh Kumar filed an focus antiquated 17.01.2013 praying for remember of non-bailable aver and dispensing with their earthy coming in a case. It was appellants’ box that pronounced focus was filed given appellant No.1, father of Arnesh Kumar is a late Army Official staying in Pune with appellant No.2 and other appellants were also residents of Pune, Maharashtra and they have to come from a distance. It was prayed by a indicted that they be exempted from a personal coming in a case. All a indicted solely Arnesh Kumar, father of complainant were postulated anticipatory bail. Anticipatory bail was postulated by a District and Sessions Judge, Patna on 21.06.2013 to all a indicted solely Arnesh Kumar, father of a complainant. The Sub-Divisional Magistrate by sequence antiquated 13.08.2013 deserted a focus filed by a indicted underneath Section 205 Cr.P.C.

3. While rejecting a focus on
13.08.2013, a Magistrate gave a following
reasons:

(i) Petitioners seem to be hale and
hearty and are not pang from any
type of illness that might be impediment
in appearing before a court.

(ii) Nature of offences requires that
accused-petitioners and also the
complainant should be benefaction before the
court preferably on any and any date
expecting good clarity prevails on them.

(iii) Their coming is also
desirable for a purpose of
conciliation given a really dramatization of
Section 498A of IPC and Dowry
Prohibition Act essentially meant for
restoration of conjugal harmony.

Challenging a sequence antiquated 13.08.2013, an focus underneath Section 482 Cr.P.C. was filed that has been discharged by a Patna High Court. The High Court discharged a focus holding a new belligerent that a request for extend from personal coming underneath Section 205 Cr.P.C. can usually be done during a theatre of initial coming of a accused. Once a indicted appears before a probity in chairman but creation any focus for dispensing with a personal coming underneath Section 205 Cr.P.C., during a successive stage, such an focus would not be maintainable. Aggrieved by a pronounced sequence this interest has been filed.
We have deliberate a submissions of a schooled warn for a parties and perused a records.

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Section 205 Cr.P.C. and Section 317 Cr.P.C. that are applicable in this box are extracted:

“ Section 205. Magistrate may
dispense with personal assemblage of
accused.—

(1) Whenever a
Magistrate issues a summons, he may,
if he sees reason so to do, dispense
with a personal assemblage of the
accused and assent him to seem by
his pleader.

(2) But a Magistrate inquiring
into or perplexing a box may, in his
discretion, during any theatre of the
proceedings, approach a personal
attendance of a accused, and, if
necessary, make such attendance
in a demeanour hereinbefore provided.

317. Provision for inquiries and
trial being hold in a deficiency of
accused in certain cases.—

(1) At any
stage of an exploration or hearing under
this Code, if a Judge or
Magistrate is satisfied, for reasons
to be recorded, that a personal
attendance of a indicted before the
Court is not compulsory in the
interests of justice, or that the
accused steadfastly disturbs the
proceedings in Court, a Judge or
Magistrate may, if a indicted is
represented by a pleader, dispense
with his assemblage and ensue with
such exploration or hearing in his
absence, and may, during any subsequent
stage of a proceedings, approach the
personal assemblage of such accused.

(2) If a indicted in any such case
is not represented by a pleader, or
if a Judge or Magistrate considers
his personal assemblage necessary,
he may, if he thinks fit and for
reasons to be accessible by him,
either adjourn such exploration or
trial, or sequence that a box of
such indicted be taken adult or tried
separately.”

The Magistrate has deserted a focus filed underneath Section 205 Cr.P.C. on opposite drift as beheld above. The High Court took unconditionally new drift for dismissing a focus filed underneath Section 482 Cr.P.C. but adverting to a drift that were taken by a Magistrate for disappearing a prayer.
We initial take adult a drift given by a High Court for rejecting a application. The High Court has celebrated that request for extend from personal coming underneath Section 205 Cr.P.C. can usually be done during a theatre of initial coming of a indicted and once a indicted appears before a probity in chairman but creation any focus for dispensing with a personal coming underneath Section 205 Cr.P.C. during a successive stage, such an focus would not be maintainable.

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The High Court has beheld that a indicted had already seemed after receiving a sequence of pre-arrest bail and furnishing bond and sureties to a compensation of a court. The pre-arrest bail was postulated to a indicted by a District and Sessions Judge by sequence antiquated 21.06.2013 and afterward a indicted seemed before a probity as has been beheld in divide 8 of a visualisation of a High probity itself.

The courtesy of a High Court that a indicted has filed focus underneath Section 205 Cr.P.C. during a successive theatre after appearing before a probity is factually incorrect. The focus was filed by a indicted underneath Section 205 Cr.P.C. on 17.01.2013. Thus, a focus underneath Section 205 Cr.P.C. was filed before to a coming in a probity and a same would have really good been deliberate by a Magistrate notwithstanding their coming in a probity after receiving a pre-arrest bail. The extend of extend from personal coming in a probity on any and any date was compulsory to be deliberate in perspective of a fact that focus was filed on 17.01.2013 most before their coming in a court. Further, a Magistrate had not deserted a focus on a belligerent that focus is not entertainable after coming of a indicted before a court. We, thus, are of a perspective that aforesaid belligerent given by a High Court for rejecting a focus is unfounded. There is one some-more reason due to that a High Court’s sequence can't be sustained.

The High Court in a sequence celebrated that there is another sustenance that is Section 317 Cr.P.C. that gives option to a probity to free a chairman from personal appearance. The High Court celebrated that a pill accessible to a indicted was underneath Section 317 Cr.P.C. and not underneath Section 205 Cr.P.C. Section 317 Cr.P.C. that empowers a Magistrate, during any theatre of exploration or hearing for reasons to be accessible to free assemblage of a accused. The Magistrate was not unable to cruise a request underneath Section 317 Cr.P.C. as per a perspective taken by a High Court. Thus, we do not find any snag in a energy of a Magistrate to cruise a focus of indicted for their extend from personal appearance.

Now, we advert to a reasons given by a Magistrate for rejecting a application. As beheld above, initial reason given by a Magistrate is that all a indicted seem hale and robust and there is no pang from any form of illness that might be snag in appearing before a court. Application was not filed by a indicted on a belligerent that they humour from any earthy illness and hence a pronounced reason given by a Magistrate is unconditionally out of place. The second reason is that indicted and complainant should be benefaction before a probity on any and any date awaiting good clarity overcome between them. We destroy to see this as any current belligerent for not deliberation tangible drift given by a indicted for seeking exemption. Third belligerent given was per conciliation that requires a coming of a indicted desirable.

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With courtesy to this belligerent it is sufficient to notice that focus underneath Section 482 Cr.P.C. was not filed by a husband, Arnesh Kumar whose pre-arrest bail was already rejected. The benefaction appellants, thus, were not dire focus underneath Section 482 Cr.P.C. for Arnesh Kumar, a father who could have really good participated in a proceedings. Thus, a above belligerent was also not accessible for rejecting of a application. In a focus a drift that were given by a appellants was that, appellant No.1 father of Arnesh Kumar is late Army crew and staying in Pune with his mother that is appellant No.2. Appellant Nos.3 and 4 were also staying during Pune. Arnesh Kumar, a father was operative during Hyderabad. The Magistrate has not deliberate a drift that were taken by a appellants for seeking exemption. It was on a record before a High Court that stretch between chateau of a indicted and a place of hearing during Patna is 1750 kms. It was serve settled that appellant No.3, Ashok Kumar Yadav was a business male and using Company in Pune and appellant No.4 was a tyro of BCA in Pune. Taking into care a whole contribution and resources and a drift taken by a appellants in their focus underneath Section 205 Cr.P.C. as good as in a focus underneath Section 482 Cr.P.C. filed before a High Court, we are of a perspective that sufficient drift were done out for extenuation extend from personal coming of a appellants in a trial. The Magistrate committed blunder in not adverting to a drift taken for praying a extend and deserted a focus on a reasons that were unfounded. The Magistrate underneath Section 205 sub-Section (2) Cr.P.C. is empowered during any theatre to approach personal coming of a indicted hence as and when personal coming of a indicted is compulsory a Magistrate is empowered to emanate compulsory orders if so decides.

14. In a result, a interest is allowed, a visualisation and sequence of a High Court antiquated 17.04.2017 as good as sequence of a Sub-Divisional Judicial Magistrate antiquated 13.08.2013 are set aside, focus filed by a appellants underneath Section 205 Cr.P.C. is allowed. The personal coming of a appellants is exempted. This, however, shall not obviate a Magistrate to pass suitable orders underneath Section 205(2) Cr.P.C. if and when personal coming of a appellants is required.

( A.K. SIKRI )
( ASHOK BHUSHAN )

NEW DELHI,

MARCH 16, 2018.

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