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TMI Blog2018 (3) TMI 1982X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Judicial Magistrate, Patna has been dismissed by the High Court. 2. Brief facts necessary to be noted for deciding the appeal are: The second Respondent filed a complaint in the Court of Sub-Divisional Judicial Magistrate, Patna alleging offence committed by the Accused as well as Arnesh Kumar, her husband. The Magistrate vide order dated 11.10.2012 finding a prima facie case Under Section 498A Indian Penal Code and Section 4 of the Dowry Prohibition Act summoned the Accused as well as Arnesh Kumar, husband of the complainant. The Accused as well as Arnesh Kumar filed an application for anticipatory bail during the pendency of the said application. Non-bailable warrants were issued by the Magistrate on 23.12.2012. All the Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 498A of Indian Penal Code and Dowry Prohibition Act primarily meant for restoration of conjugal harmony. 4. Challenging the order dated 13.08.2013, an application Under Section 482 Code of Criminal Procedure was filed which has been dismissed by the Patna High Court. The High Court dismissed the application taking a new ground that a prayer for exemption from personal appearance Under Section 205 Code of Criminal Procedure can only be made at the stage of first appearance of the accused. Once the Accused appears before the court in person without making any application for dispensing with the personal appearance Under Section 205 Code of Criminal Procedure, at a subsequent stage, such an application would not be maintainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such Accused be taken up or tried separately. 7. The Magistrate has rejected the application filed Under Section 205 Code of Criminal Procedure on different grounds as noticed above. The High Court took entirely new grounds for dismissing the application filed Under Section 482 Code of Criminal Procedure without adverting to the grounds which were taken by the Magistrate for declining the prayer. 8. We first take up the grounds given by the High Court for rejecting the application. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the High Court's order cannot be sustained. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482 Code of Criminal Procedure was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present Appellants, thus, were not pressing application Under Section 482 Code of Criminal Procedure for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the Appellants was that, Appellant No. 1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is Appellant No. 2. Appellant Nos. 3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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