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Saket Kumar Singh vs State Of Bihar & Anr on 4 December, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.97 of 2018
Arising Out of PS. Case No.-548 Year-2015 Thana- BHAGALPUR KOTWALI District-
Bhagalpur

Saket Kumar Singh S/o Devendra Prasad Singh, Permanent R/o Village-
Shijhatt, P.S.- Dhoraiya, District- Banka, and also residing in the house of
Surendra Pd Gupta, Mohalla- Jogsar, Gobar Lane, P.S.- Adampur, District-
Bhagalpur. At present residing and working as Company Secretary in Religare
Global Asset Management Company Pvt. Ltd, D-3, B.S. Wing, First Floor,
Mohalla- Saket, P.S.- Saket, New Delhi-110017.

… … Petitioner/s
Versus

1. The State of Bihar.

2. Rashmi Singh W/o Saket Kumar Singh, D/o Vijay Singh, R/o Mohalla- West
Lohanipur, Parmeshwar Singh Lane, P.S.- Kadamkuan, District- Patna.

… … Respondent/s

Appearance :

For the Petitioner/s : Mr. Anil Kumar Singh, Advocate.

For the State : Mr. Umesh Lal Verma
For the O.P. No. 2 : Mr. Shailendra Kumar Jha, Advocate.

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date : 04-12-2018

As both parties have appeared, this case has been

taken up for disposal at the initial stage itself.

2. Petitioner has preferred this revision application

against the order dated 03.11.2017 passed by the learned

S.D.J.M., Patna in Kotwali (Adampur) P.S.Case No. 548 of

2015, G.R.No. 3271 of 2015 whereby and whereunder learned

S.D.J.M., has been pleased to reject the prayer of the petitioner

for exemption from personal appearance in the day-to-day

proceeding in terms of provisions enumerated in Section 205 of

the Criminal Procedure Code (hereinafter referred to as the

‘Code’), because petitioner is residing at New Delhi and is a
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
2/9

busy person, being Company Secretary and has to visit so many

places, therefore, wants to remain present through lawyer to

appear before the court when his appearance is necessary.

3. The case of the prosecution, in short, is that

Opposite Party No. 2, being the wife of the petitioner, has

submitted a written application before the Officer-in-Charge of

Kotwali (Adampur) Police Station, on the basis of which,

present case i.e., Kotwali (Adampur) P.S.Case No. 548 of 2015,

has been instituted alleging that as per the order of Smt.

Khushboo Srivastava, Judicial Magistrate, 1st Class, Patna, she

came at Bhagalpur on 02.09.2015 by car from Patna at 10:00

P.M. with her husband, who is the petitioner, and on her arrival,

the accused persons started abusing her with filthy language and

assaulted her saying as to why she has come and asked her to

withdraw the case. It is also alleged that they demanded money

to purchase a flat and to withdraw the case and until she not

bring money from her father, she has been subjected to torture

and on that the present case has been lodged.

4. The police, after investigation, submitted charge

sheet under Section 498A, 504 and 506/34 of the Indian Penal

Code upon which the learned Chief Judicial Magistrate,

Bhagalpur has taken cognizance.

Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
3/9

5. It further appears from perusal of the petition that

in the meantime, the O.P. No. 2 filed a miscellaneous petition

before this Court for transferring of the case from Bhagalpur to

Patna in Cr. Misc. No. 55679 of 2015, which was allowed vide

order dated 22.04.2016 by this Court, as such this case has been

transferred to the file of learned S.D.J.M., Patna.

6. It further appears that the petitioner has filed a

petition dated 16.10.2017 to exempt his personal appearance

from day-to-day proceeding in terms of Section 205 of the Code

and to allow him to represent through his lawyer as he is a

Company Secretary and has to be move many places and it is

difficult for him to appear day-to-day proceeding of the court

and he undertakes to appear physically whenever his personal

appearance is required. It further appears that a rejoinder to the

same was filed by the O.P. No. 2. After hearing the parties, the

learned S.D.J.M. vide impugned order dated 03.11.2017

dismissed the petition filed by the petitioner for exemption

under Section 205 of the Code.

7. Being aggrieved by the impugned order, the present

application has been filed on the ground that this Court, vide

order dated 24.04.2016 passed in Cr. Misc. No. 55679 of 2015,

while transferring the case from Bhagalpur to Patna, has
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
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observed as follows:-

“The Court at Patna shall not insist on personal appearance
of the accused persons, apart from the stage of charge, 313
Cr.P.C. and judgment and conclude the case positively
within a period of four months on receipt of the records of
the case.”

8. Learned counsel for the petitioner contended that

the Hon’ble Apex Court in Cr. Appeal No. 1265 of 2017, has

given the following direction:

“Personal appearance of all family members and particularly
all outstation members may not be required and the trial
court ought to grant exemption from personal appearance or
permit appearance by video conferencing without adversely
affecting progress of the trial.”

9. It is further contended that this Hon’ble Court in

cases of Jayant Dang v. State of Bihar reported in 2004(4)

PLJR 25 and Manish Gai vs. State of Bihar reported in

2007(1) PLJR 822, has held that ‘even after issuance of warrant

of arrest, dispensing with the personal appearance under Section

205 of the Cr.P.C. does not end’, but in spite of the aforesaid

decisions of the Apex Court and the High Court, the prayer for

exemption from his personal appearance has been rejected by

the learned S.D.J.M. by the impugned order, which appears to

be illegal and not sustainable in the eye of law.

10. Heard learned A.P.P. as well as learned counsel for

the O.P. No. 2, who have defended the impugned order on the
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
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ground that the prayer for anticipatory bail of the petitioner has

already been rejected up this Hon’ble Court vide order dated

30.06.2016 and apart from that there was direction of this Court

in Cr. Misc. No. 55679 of 2015 to conclude the trial within a

period of four months, but petitioner did not choose to appear

and due to non-appearance of the petitioner trial has not

progressed, as such conduct of the petitioner is so that his

personal appearance may not be exempted for the ends of

justice.

11. Having heard both sides. From perusal of the

record, it appears that prayer for anticipatory bail of the

petitioner was rejected by this Court vide order dated

30.03.2016. Further while transferring the case to Patna, this

Court, in Cr. Misc. No. 55679 of 2015, vide order dated

22.04.2016, has ordered for conclusion of trial within a period

of four months and in spite of that, the petitioner did not choose

to appear rather filed the present application on 19.08.2017 i.e.,

after almost a year.

12. It appears that this Court, in decisions cited by the

learned counsel for the petitioner in the case of Jayant Dang

supra), while dealing with the case under Negotiable Instrument

Act, has held as follows:

8. This Court in the facts and circumstances of the case
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
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considers it apt to agree with the judgment relied upon by
the Counsel for the petitioners reported in 1998(1) PLJR

503. A Division Bench of this Court while dealing with
the issue of grant of relief under Section 205 Cr PC held
that even in cases where warrants have been issued in the
first instance the Court may dispense with the personal
appearance in exercise of powers under
Section 482 of
the Code, if a proper case is made out for the ends of
justice. The Division Bench further went on to hold that
the exercise of power under
Section 205, is discretionary
and to be considered in a reasonable manner. No hard and
last rule could be laid down. The Court should be liberal
in granting exemption in personal appearance except
where serious issues or allegations of moral turpitude are
involved. The nature of the allegation, conduct of the
accused, inconvenience likely to be caused to the accused
due to his appearance on every day in the Court the
comparative advantage to the prosecution, are all relevant
considerations for deciding the question of dispensing
with the personal appearance. Though no categorization
of cases for grant of relief under Section 205 Cr PC could
be made but generally “….busy business people… should
be given the benefit of the said provision unless they are
facing prosecution under serious offences like murder,
rape, misappropriation of money, harassment to women
etc.” The fact that the petitioners are business people and
reside at Delhi, while the trial is to be conducted at Patna
are issues which have not been considered in the
impugned order. More recently the Supreme Court in
(2001) 7 SCC 401 while considering the issue of
dispensing with personal attendance in a prosecution
arising under the
Negotiable Instruments Act, held that in
appropriate cases the Magistrate can allow an accused to
make even first appearance through the counsel. The law
would enjoin that personal appearance of an accused
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
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could be dispensed with at any stage in a proceeding at
the summon stage and that if insistence of his personal
appearance would itself inflict enormous suffering or
tribulation on him and the comparative advantage would
be less. The discretion would need to be exercised where
due to far distance at which the accused reside or carries
on business, or for other good reason were dispensing
from personal appearance would be in the interest of
justice. These are all aspects which have to be considered
for grant of relief under Section 205 Cr PC. This position
in the law has been reiterated by a Bench of this Court in
a judgment reported in 2002(3) PLJR 583, placing
reliance upon the law as enunciated by the Apex Court in
the judgment aforesaid. This is the position reiterated in
2002 (3) PLJR 628 by another Bench of this Court”.

and the case of Manish Gai (supra) is also

with respect to the case under Negotiable Instrument Act.

Whereas the Apex Court, in case of TGN Kumar v. State of

Kerala Ors. reported in (2011) 2 SCC772, has observed as

follows:

“8. The Section confers a discretion on the court to
exempt an accused from personal appearance till such
time his appearance is considered by the court to be not
necessary during the trial. It is manifest from a plain
reading of the provision that while considering an
application under
Section 205 of the Code, the Magistrate
has to bear in mind the nature of the case as also the
conduct of the person summoned. He shall examine
whether any useful purpose would be served by requiring
the personal attendance of the accused or whether the
progress of the trial is likely to be hampered on account
of his absence. (See: S.V. Muzumdar Ors. Vs. Gujarat
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
8/9

State Fertilizer Co. Ltd. Anr.7). Therefore, the
satisfaction whether or not an accused deserves to be
exempted from personal attendance has to be of the
Magistrate, who is the master of the court in so far as the
progress of the trial is concerned and none else.”

13. From the discussions made hereinabove, it clearly

appears that this case has been filed in the year 2015,

cognizance has been taken vide order dated 16.03.2016 and

prayer for anticipatory bail of the petitioner was rejected vide

order dated 30.03.2016, which appears from the impugned order

and in the transfer petition, there is direction of this Court, by

order dated 22.04.2016 in Cr. Misc. No. 55679 of 2015, to

conclude the trial within a period of four months but in spite of

the rejection of prayer of anticipatory bail, the petitioner has not

appeared before the trial court and as such further proceeding

has hampered and he has filed the application after more than a

year of the direction of this Court to conclude the trial within

four months. In such view of the matter, it appears that the

conduct of the petitioner is to linger the trial. Furthermore, the

offence does not relate to Negotiable Instrument Act rather it

relates to moral turpitude and offence against woman under

Section 498A of the Indian Penal Code. So far direction of

Hon’ble Apex Court in Cr. Appeal No. 1265 of 2017 is

concerned that is general in nature, whereas the facts of the
Patna High Court CR. REV. No.97 of 2018 dt.04-12-2018
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present case is different.

14. Moreover, it is discretion of the Magistrate to

consider the prayer for exemption under Section 205 of the

Code keeping in view the conduct of the accused as to whether

it will hamper trial or not and the impugned order passed by the

learned Magistrate shows that because petitioner has not

appeared in order to hamper the trial and filed an application on

19.08.2017 i.e., after one year of rejection of anticipatory bail,

thus, rejected the petition, as such I find no illegality to interfere

with the impugned order.

15. However, petitioner, if so desires, appears before

the learned Magistrate and prays for bail, if it is so, the same

shall be considered by learned Magistrate in the light of the

order passed by this Court in Cr. Misc. No. 55679 of 2015 and

the other material available on record and shall be disposed on

the same day.

16. With the above observation and direction, this

application is disposed of.

(Vinod Kumar Sinha, J)
sujit/-

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