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
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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
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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
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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
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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
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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
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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
8/9State 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
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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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