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TMI Blog2017 (8) TMI 1691X X X X Extracts X X X X X X X X Extracts X X X X ..... oner had a hand in delaying the case or for not appearing as during that period there was no criminal case in existence so far as petitioner is concerned. Principles governing an application under section 205 Cr.P.C. have not been appreciated by the learned court below and the discretion which has to be judiciously exercised also does not find place in the impugned order dated 6.9.2016. The petitioner apart from being a busy executive has also taken the ground of serious ailments but the learned court below has merely recorded the submissions of the petitioner without giving any finding with respect to the same which would be necessary to show that the learned court below has exercised its jurisdiction in a judicious, legal and proper manner. The matter is remanded back to the learned court below to pass a fresh order in accordance with law after hearing the respective parties - Application allowed. - Cr. M.P. No. 2557 of 2016 With Cr. Revision No. 1422 of 2016 - - - Dated:- 9-8-2017 - HON'BLE MR JUSTICE RONGON MUKHOPADHYAY For the Petitioner : Mr. Soumitra Sen, Sr. Advocate For the CBI : Mr. Rajiv Sinha, Advocate ORDER Heard the parties. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The facts which have been narrated in the present applications are that M/s Microgen India was disqualified to participate in the tender as its turnover was approximately Rs.1.5 crores as against the required turn over of Rs.12 crores. On Repeat Tender, one M/s Nandkishore Fogla approached the petitioner to appoint them as a distributor. M/s Microgen India by letter dated 11..8.2008 authorized M/s Nandkishore Fogla to quote its product. A work order was awarded to M/s Nandkishore Fogla for supply of 50,000 liters of Disinfectant, 300 pieces of Fogger Machines and 1000 pieces of dispensers. M/s Nandkishore Fogla thereafter issued work order in favour of M/s Microgen India, which supplied the materials through its consignee agent M/s Sonanchal Enterprises, Ranchi and the payment collected by the consignee agent was forwarded to M/s Microgen India. Since the allegations against the petitioner have already been dealt with up to the Hon ble Supreme Court, the same are not necessary to be considered at this stage. The petitioner had preferred an application before the learned court below under section 205 of Cr.P.C., which was rejected vide order dated 6.9.2016 and which is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention, learned senior counsel has referred to the judgment rendered in the case of Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd., reported in 2001 (7) SCC 401. Mr. Rajiv Sinha, countering the argument of learned senior counsel for the petitioner has stated that after the order of the High Court has been set aside by the Hon ble Supreme Court, situation has once again been restored to its original state. It has been submitted that case relates to huge financial embezzlement of which the petitioner was also a part. It has been submitted that the petitioner had adopted delaying tactics in prolonging the trial. Learned counsel submits that discretion lies with the Magistrate for consideration of an application under section 205 Cr.P.C. and the discretion has been exercised by the learned court below in a judicious manner refusing to accede to the prayer of the petitioner. Learned counsel in support of his contention has also referred to the same judgement which has been referred to by the learned senior counsel for the petitioner. In order to appreciate the rival contentions, it would be necessary to appreciate the application preferred by the petitioner und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the learned court below has exercised its jurisdiction in a judicious, legal and proper manner. In the case of Bhaskar Industries Ltd. (supra), it was held as follows: 13. Sub-section (1) envisages two exigencies when the court can proceed with the trial proceedings in a criminal case after dispensing with the personal attendance of an accused. We are not concerned with one of those exigencies i.e. when the accused persistently disturbs the proceedings. Here we need consider only the other exigency. If a court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of that accused. In this context, a reference to Section 273 of the Code is useful. It says that: 273. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate has to exercise his judicial discretion although in rare instances and the parameters guiding such principle have been laid down. Neither has the fact regarding the petitioner s frequent travelling on account of being the Executive Director of M/s Microgen India has been considered nor has the ailments which the petitioner has been suffering from taken note of while rejecting the application under section 205 Cr.P.C. preferred by the petitioner. In such view of the matter, therefore, the order dated 6.9.2016 passed by the learned Special Judge, CBI, Ranchi is hereby quashed and set aside and the matter is remanded back to the learned court below to pass a fresh order in accordance with law after hearing the respective parties. As a consequence to setting aside the order dated 6.9.2016, the order dated 3.10.2016, which is also under challenge before this Court is also quashed and set aside in view of the fact that the prayer for adjournment was rejected solely on the ground that the application under section 205 Cr.P.C. had already been rejected. Since rejection of the application under section 205 Cr.P.C. has been set aside, as indicated above, the order dated 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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