2018 (3) TMI 1982 - SC - Indian Laws

Prayer for exemption from personal appearance Under Section 205 Code of Criminal Procedure - HELD THAT - The High Court has noticed that the Accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the Accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the Accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself - The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the Accused before the court. The High Court in its order observed that there is another provision that is Section 317 Code of Criminal Procedure which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the Accused was Under Section 317 Code of Criminal Procedure and not Under Section 205 Code of Criminal Procedure Section 317 Code of Criminal Procedure which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer Under Section 317 Code of Criminal Procedure as per the view taken by the High Court - there is no impediment in the power of the Magistrate to consider the application of Accused for their exemption from personal appearance. Sufficient grounds were made out for granting exemption from personal appearance of the Appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate Under Section 205 Sub-section (2) Code of Criminal Procedure is empowered at any stage to direct personal appearance of the Accused hence as and when personal appearance of the Accused is required the Magistrate is empowered to issue necessary orders if so decides - Appeal allowed.

Summary

Issues:
Appeal against the judgment of Patna High Court dismissing application under Section 482 of the Code of Criminal Procedure challenging order dated 13.08.2013 passed by Sub-Divisional Judicial Magistrate, Patna.

Analysis:
1. Background: The complaint alleged offenses under Section 498A IPC and Section 4 of the Dowry Prohibition Act against the Accused and her husband. The Magistrate summoned the Accused and the husband, who filed an application for anticipatory bail. Non-bailable warrants were issued, and the Accused sought exemption from personal appearance due to distance.

2. Reasons for Rejection: The Magistrate rejected the application citing the Accused's health, the nature of offenses, and the importance of their presence for conciliation. The High Court dismissed the application stating that exemption can only be sought at the first appearance and that Section 317 of the CrPC should be invoked instead.

3. High Court's Error: The High Court wrongly noted that the Accused had appeared before filing the application, which was incorrect. The Accused had filed the application prior to their appearance, making it valid for consideration. Additionally, the High Court wrongly suggested Section 317 as the appropriate remedy.

4. Magistrate's Reasons: The Magistrate's reasons for rejection were flawed. The Accused did not claim physical illness, and the need for their presence for conciliation was not a valid ground. The Accused had valid reasons for seeking exemption based on their locations and occupations, which the Magistrate failed to consider.

5. Decision: The Supreme Court allowed the appeal, setting aside the High Court and Magistrate's orders. The Accused were granted exemption from personal appearance, with the Magistrate retaining the power to direct their appearance when necessary under Section 205(2) of the CrPC. The Court emphasized that the Magistrate has the authority to issue orders for personal appearance as required.