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TMI Blog2018 (9) TMI 2107X X X X Extracts X X X X X X X X Extracts X X X X ..... within the discretion of Magistrate/Judge here, the Principal Special Judge for CBI Cases, Hyderabad. The Principal Special Judge for CBI Cases being the Master of the proceedings in his Court exercised his discretion and declined the request of the petitioner. In Sushila Devi and Jagadguru Sachidanada Shankarabharati Swami of Sri Kudli Sringeri Mutt case (referred supra) it is held that the next test will be a question of status; highly placed public functionaries, or very busy captains of industry and the like should not, unless the prima facie case is serious, be compelled to attend. If these principles are applied to the present facts of the case, though the petitioner is busy industrialist, who intend to establish another industry in the composite State of Andhra Pradesh by illegal means i.e. allegedly paying approximately Rs.139 crores for transfer of prospecting license. Therefore, his pre-occupation in the affairs of various companies or industries is not a ground in view of the seriousness of the case involving more than Rs.100 crores for granting largesse by the Government i.e. transfer of prospecting licence by M/s Raghuram Cements Limited, in violation of settled guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vel from Delhi to appear before the Court at Hyderabad on every Friday spending not less than two days. On account of posting C.C.No.12 of 2013 on every Friday, the petitioner has been facing undue hardship in meeting his business commitments, in addition to continuous financial loss caused to him. Hence, the petitioner requested to dispense with his appearance permitting his counsel Sri Bharadwaj Reddy to appear on his behalf. The respondent Central Bureau of Investigation (for short C.B.I. ) filed counter denying material allegations inter alia contending that Sri Puneet Dalmia (accused No.3) of M/s. Dalmia Cement (Bharat) Limited (accused No.12) conspired with Sajjala Diwakar Reddy (accused No.7) promoter of M/s. Eswar Cements Private Limited (accused No.13) entered into Memorandum of Understanding (for short MOU ) with a condition that M/s. Eswar Cements Private Limited (accused No.13) could acquire prospecting licence/Mining lease in favour of M/s.Eswar Cements Private Limited (accused No.13) and to facilitate transfer to M/s.Dalmia Cement (Bharat) limited (accused No.12) paving the way for M/s. Dalmia Cement (Bharat) Limited (accused No.12) for establishment of a cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the counter the ground on which the petitioner sought for relief to dispense with his appearance on account of business commitments and pre-occupation in connection with his business activities and inconvenience being caused to the petitioner to appear before the Court, is not at all a ground and prayed to dismiss the petition. Upon hearing argument of both the counsel, the Principal Special Judge for CBI Cases, Hyderabad dismissed the petition on various grounds. Aggrieved by the order passed by the Principal Special Judge for CBI Cases, Hyderabad, the petitioner preferred the present petition on the same grounds while contending that the petitioner gave consent that he will not claim or set up defence that the evidence is recorded in his absence, in the event of passing order in his favour and that his appearance before the Court on every Friday is useless effort made by him and that he is incurring huge expenditure to attend the Court on every date of adjournment besides loss of two days time and thereby causing much inconvenience in participating in his business affairs being the director of various companies. But the trial Court did not consider the purpose of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 474 , the Apex Court held that it is well established principle that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra 1978CriLJ165 and it was held as under: The following principles may be stated in relation to the exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. In view of the limited power, this Court has to examine the legality of the order passed by the Court below, keeping in mind the grounds urged before this Court in the present criminal petition. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in addition to the above argument that instead of filing petition under Section 317 of Cr.P.C., the petitioner filed petition under Section 205 of Cr.P.C. Therefore, quoting wrong provision of law is not a ground to dismiss the petition, if the petitioner is entitled to claim relief in a petition filed under Section 205 of Cr.P.C. But this contention cannot be accepted for the simple reason that there is lot of distinction between Section 317 of Cr.P.C. and Section 205 of Cr.P.C. Under Section 317 of Cr.P.C., the absence of the petitioner can be condoned either during trial or enquiry, but power under Section 205 of Cr.P.C. can be exercised only to dispense with the appearance of the petitioner during trial/enquiry by the Judge/Magistrate if he is represented by Counsel duly authorized by the petitioner. In a petition filed under Section 317 of Cr.P.C. no such advocate need to represent the accused. The power conferred on the Court under Section 205 of Cr.P.C. is in the nature of special vakalat to represent the petitioner/accused and the Counsel can answer to the questions put to him including his examination, so also examination under Section 313 of Cr.P.C., whereas under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings is specifically provided for. It is, however, one of the vital principles of the administration of criminal justice, which is universally acknowledged, that in a criminal trial the Court should not proceed ex parte against an accused person. It is further held that while, therefore, it cannot be denied that the presence of the accused at the trial is necessary, the Code itself shows that the trial Court has discretion in certain circumstances to exempt the personal attendance of the accused. There is no specific section to that effect except Section 205 of Cr.P.C., but it is implied in some of the other sections in the Code. For example, Section 353 of Cr.P.C. provides for recording of evidence in the presence of the accused. Therefore, on the strength of the principle laid down in the above judgments, the learned Senior Counsel for the petitioner contended that the Court below did not exercise its discretion, which vested on it by Section 205 of Cr.P.C. and when the Court failed to exercise discretion, this Court while exercising power under Section 482 of Cr.P.C. can interfere with such order and pass appropriate order. In Robin Paul v. Mr.G.K.Roy and another 2010 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not serve any purpose on every date of adjournment. In Sri Rameshwar Yadav v. The State of Bihar AIR2018SC1435 the Apex Court in a similar situation while dealing with a petition filed by a businessman, who has to travel long distance more than 1700 kms, sought for exemption from appearing before the Court by filing an application under Section 205 of Cr.P.C. in a case registered for the offence punishable under Section 498-A of I.P.C. and under 4 of Dowry Prohibition Act, held that grant of exemption from personal appearance in Court on each and every date was required to be considered in view of fact that application was filed much before their appearance in Court and finally granted exemption. In Sushila Devi vs Sharda Devi 1961 CriLJ 819 Madhya Pradesh High Court while dealing with question of status of the accused held as follows: Courts should be generous in exempting accused persons from personal appearance. Personal appearance is the Rule in criminal cases of a serious nature, involving moral turpitude and punishable with imprisonment for some length of time. On the other hand, where the offence is punishable with fine only, and involves no moral turpit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertake his business activities. Insistence of petitioner s appearance before the Court below would not infringe personal liberty guaranteed under Article 21 of the Constitution of India, since such liberty can be deprived by law. Appearance of the accused in criminal cases on the dates of adjournment is mandated by the procedure, unless his appearance is exempted by the Court by exercising power under Section 205 Cr.P.C or dispense with the petitioner s appearance on the dates of adjournment by exercising power under Section 317 Cr.P.C. When the law mandates appearance of the accused in cases like grave economic offences, it would not amount to infringement of fundamental right guaranteed under Article 21 of the Constitution of India. Undoubtedly, it is the obligation of the petitioner to participate in business activities being the director of various companies. But, that itself is not a ground to exempt the petitioner from his appearance before the Court, as he is required to appear before the Court on one day in a week i.e. on Friday, as per the allegations made in the petitions. The learned Special Public Prosecutor for C.B.I mainly contended that Section 205 Cr.P.C is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense with the personal appearance and permit him to appear by his pleader. No further guidelines are mentioned under Section 205 and it is left to the discretion of the Magistrate to exercise his discretion judicially. Therefore, based on such conclusions, various High Courts are of the consistent view that Section 205 Cr.P.C can be invoked either in summons or in warrant cases and it is purely a discretionary power of the Magistrate. In Sheela Kumar W/o Arvind Prasad and Ors. vs. State of Bihar through Vigilance 2009CriLJ2675 , the Patna High Court on analysing the entire law laid down in various judgments, reiterated the same principle and laid down certain guidelines as to when such power has to be exercised by the Magistrate. Therefore, the consistent view of various Courts is that, there is no distinction between warrant cases and summons cases to exercise jurisdiction of Section 205 Cr.P.C to exempt personal appearance of the accused before the Court below. In view of the law declared by the Patna High Court, I find no substance in the contention of the learned Public Prosecutor for C.B.I. In Basavraj R. Patil vs. State of Karnataka 2000 (8) SCC 740 , the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that he magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, bogs down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples is summed up as follows: (A) Where summon is issued at the first instance, whether it may be in summons case or warrant case, application under Section 205 of the Code can be allowed in categories as follows: i) If accused resides or carries on business at a far off place. ii) On account of physical reasons. iii) If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less. iv) Purdanashin women. v) Old and sick person. vi) Factory workers and labourers. vii) Busy business people or public functionaries. viii) Corporate employees. (B) The aforesaid categories are illustrative and not exhaustive. The nature of allegation and conduct of accused would also be relevant consideration. However, in cases of serious and major offences, like rape, murder, dacoity, Arms Act etc. or offences involving moral turpitude and longer punishment, exemption under Section 205 of the Code ought not to be ordinarily granted. In case any time before arrest of a person pursuant to the execution of warrant, if summons is issued at first instance, application under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed serious financial fraud amounting to crores of rupees, at the behest of politicians, such case can be treated as grave and serious offence. The Supreme Court in Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation AIR 2013 SC 1933 held that Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Thus, the Apex Court itself has described the offences committed by the accused No.1 therein as grave offences causing dent to the economy of State and affecting the economy of the country. Grave economic offences, for that matter the offence causing dent to the economy of the country can be classified as serious and grave offences and the Court would not normally exercise its discretion to dispense with the appearance of the accused under Section 205 of Cr.P.C. Learned Senior Counsel Sri D.Prakash Reddy contended that, insisting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised sparingly under Section 205 Cr.P.C. In T.G.N. Kumar case (referred supra), the Supreme Court held that on the plain language of Section 317 of Cr.P.C., it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 317 of the Code as well. Therefore, on analysis of entire law laid down by various Courts, the discretion is totally vested with the Magistrate to dispense with the appearance of the accused and the Court must also see that such exemption shall not be misused. When the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interest of justice, he may exercise such discretion under Section 205 of Cr.P.C judiciously and he must also take necessary precautions enumerated that such exemption shall not be misused and protract the proceedings without any reason. While deciding applications under Section 205 Cr.P.C for the offences punishable under Section 138 of Negotiable Instruments Act, the Apex Court laid down certain guidel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C. the pleader may on his behalf be examined and may plead guilty under Sections 242 and 243. Whether the Court can act upon an admission of guilt by the pleader under Sections 242, 243, 251A, 255 and 271 does not directly arise in the case and expressed no opinion on it. The Court expressed its opinion that it is sufficient to say that the language of those sections and the effect of admissions under them are entirely different. The Court was not impressed with the argument that the accused will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purpose of Section 205 of Cr.P.C. and thereby negated the relief to dispense with the appearance by exercising power under Section 205 of Cr.P.C. In Arvind Kejriwal v. the State of U.P. (2015) 6 All L J 542 the Allahabad High Court held as follows: Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the petitioner herein did not approach the Apex Court and the petitioner herein is accused No.3 in the same C.C.No.12 of 2013, whereas Sri Y.S.Jagan Mohan Reddy is accused No.1. Therefore, the observations whatever made by the Apex Court in Y.S.Jagan Mohan Reddy s case will have its own bearing on the issue involved in C.C.No.12 of 2013, on this ground the petitioner cannot be exempted from appearance before the Court by exercising power under Section 205 of Cr.P.C. The power under Section 205 of Cr.P.C. is purely discretionary in nature and while deciding such application, the Magistrate or the Judge has to bear in mind the nature of the case as also the conduct of the person summoned. The Magistrate shall examine whether any useful purpose would be served by requiring the 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 v. Gujarat State Fertilizer Co. Ltd. (2005) 4 Supreme Court Cases 173 (referred supra)). Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance is totally depending upon the discretion of the Magistrate, who is the master of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes that there is manifest error in the order under challenge or if the order is not set aside, it would lead to misuse or abuse of process of Court. Therefore, the High Court must be slow in interfering with such discretionary orders passed by the Magistrate. In Devanand Upadhayay v. the Union of India 2006 Cri.L.J 63 the Single Judge of Patna High Court observed that the Court below has chosen not to exercise its discretion in favour of the petitioner and this Court, while exercising inherent powers under Section 482 of the Code, should not regulate and guide the exercise of discretion vested in the Court below. In the facts of the above judgment, the accused was absent consistently, consequently N.B.W. was issued against the petitioner therein, instead of appearing before the Court and get the warrant recalled by filing appropriate application, filed application under Section 205 of Cr.P.C. to dispense with his appearance while permitting his authorized agent to appear before the Court, but the Court held that the discretion exercised by the Magistrate cannot be faulted since the High Court cannot regulate and guide the subordinate Courts while exercising power under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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