Delhi District Court
Suman Dixit vs State on 1 March, 2025
CR no. 154/2024 Suman Dixit Vs State & Anr
IN THE COURT OF MS MANU GOEL KHARB
SPECIAL JUDGE (NDPS)-02: DWARKA COURTS
NEW DELHI
Criminal Revision No.: 154/2024
(In Cr. Case no. 6465/2022 titled as
State Vs Rishabh Dixit
FIR no. 173/2020, P.S. Sector 23 Dwarka)
Suman Dixit
W/o Sh. Subhash Chandra Dixit
Near Raj Garden (Marriage Home)
Wali Gali, Ram Ghat Road, Aligarh
UP-202001
Also at
Block B-11, Flat no. 41, DDA Flats,
Sector-23B, Dwarka, New Delhi.
.... Revisionist
VERSUS
(1) The State
(2) Adesh Pawar S/o Sh. Satbir Singh Pawar
R/o Flat no. 14, Block C-7, Pocket-8,
DDA Flats, Sector 23-B, Dwarka,-110077
.... Respondents
ORDER
1. Present criminal revision petition under section 399 read with section 397 of the Code of Criminal Procedure, 1973 (Cr.P.C) has been filed by the revisionist against the order dated 13.12.2023 passed by the court of Ld. ACMM, South West, Dwarka Courts, New Delhi in Cr. Case no. 6465/2022 titled as State Vs Rishab Dixit in FIR no. 173/2020, Page 1 of 10 CR no. 154/2024 Suman Dixit Vs State & Anr P.S. Sector 23 Dwarka, whereby application for permanent exemption of the revisionist Suman Dixit was dismissed.
2. Aggrieved by the said order, the present revision petition was filed. It is argued by Ld. Counsel for the revisionist that Ld. Trial Cout failed to appreciate the fact that revisionist is 56 years of age and is permanent resident of Aligarh, UP and is suffering from rare autoimmune disorder namely ITP which causes a significant reduction in number of platelets in the blood. It is further argued that while passing the impugned order, Ld. Trial Court has ignored the material fact that revisionist is surviving on the basis of lifesaving drugs which are necessary to stabilize the platelet count without which she is at the constant risk of bleeding. It is submitted that long travel from Aligarh on each and every date can pose a grave threat to her health and well-being. It is further alleged that the revisionist undertakes not to dispute her identity during trial. It is further alleged that the order of Ld. Trial Court was biased, erroneous, misunderstood and misinterpreted. It is further stated that the order of the Ld. Trial Court is perverse and based on conjectures and surmises and suffers from legal infirmity and in flagrant violation of law causing grave miscarriage of justice. Therefore, it is prayed that order of Ld. Trial Court be set aside and personal appearance of the revisionist be permanently exempted from through her counsel .
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3. Notice of the petition was given to the through Ld. Addl. PP for the State and to the respondent no. 2 who appeared and opposed the revision petition on the ground that there is no illegality or infirmity in the order of the Ld. Trial Court and as such the revision petition be dismissed.
4. I have heard the submissions and perused the Trial court record.
5. The relevant provision of Section 397(2) Cr.P.C is reproduced herein below:
"Section 397 . Calling for records to exercise powers of revision -
(1) ....
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
6. Vide order dated 13.12.2023, Ld. Trial Court has dismissed the application for permanent exemption of the revisionist and the order of Ld. Trial Court is reproduced hereunder :-
"Record shows that in the affidavit furnished by accused No.2, address is stated to be of Sector 23-B Dwarka. Even in the application and written submissions, it is not clarified as to the actual usual residence of applicant. Further, medical record dated
07.07.2022 shows that there is no specific advise against travel. Contemporaneous medical record was sought from the applicant. Perusal of the same which is dated 15.06.2023 further shows that there is no advise regarding avoiding travel. Further, the law Page 3 of 10 CR no. 154/2024 Suman Dixit Vs State & Anr regarding Section 205 Cr.PC has been interpreted in various judgments. It is settled law that exemption from appearance under Section 205 Cr.PC cannot be claimed as a matter of right by the accused and sufficient compelling reasons have to be shown by the accused. Perusal of record and considering the above discussion, no sufficient ground is made out for granting permanent exemption to accused Suman Dixit. Accordingly, present application on behalf of accused Suman Dixit is dismissed.
Adjournment is sought on behalf of proxy counsel for accused on the ground that main counsel is in some personal difficulty. Accordingly, complainant is discharge unexamined and bound down for 20.03.2024."
7. Section 205 and Section 317 Cr.P.C. lays down the provision for conducting inquiries and trial in the absence of accused. Section 205 CrPC talks about the power of the Magistrate to dispense with the personal appearance of the accused and Section 317 CrPC talks about the powers of the Magistrate as well as Sessions Court to dispense with personal appearance of the accused at any stage of inquiry or trial. The relevant provision of Section 317 Cr.P.C is reproduced herein below:
"Provision for inquiries and trial being held in the absence of accused in certain cases.--(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.Page 4 of 10
CR no. 154/2024 Suman Dixit Vs State & Anr (2) If the accused in any such 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.
8. In judgment titled as Dr. Ambumani Ramadoss Vs Central Bureau of Investigation 2023:DHC:9376, Hon'ble Delhi High Court has dealt with the issue of exemption of the accused from personal appearance and it has been held as under:
10. At the outset, this Court notes that the scheme of Cr.P.C., through Section 273, provides that as a general rule, all evidence presented during a trial must be taken in the presence of the accused. However, the Cr.P.C. also provides exceptions to this general rule, by virtue of Sections 205 and 317, which contain the law regarding exempting an accused from personal appearance. Sections 273, 205 and 317 of Cr.P.C. are reproduced hereunder for reference:
273. Evidence to be taken in presence of accused.
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. Explanation.- In this section," accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code..."
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205. Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
Page 5 of 10CR no. 154/2024 Suman Dixit Vs State & Anr (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
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317. Provision for inquiries and trial being held in the absence of accused in certain cases (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct and the personal attendance of such accused.
(2) If the accused in any Such 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..."
11. A perusal of the aforesaid provisions would reveal that Section 205 of Cr.P.C. empowers the Magistrate to dispense with the personal attendance of an accused right from the stage of commencement of proceedings before it, and Section 317 of Cr. P.C. confers power upon both the Magistrate as well as Sessions Judge to grant exemption from personal appearance to the accused at any stage of inquiry or trial. However, both these provisions also provide the power to the concerned Courts to later direct the personal attendance of the accused at any stage.
12. The Hon‟ble Apex Court, in case of Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401and Puneet Dalmia v. CBI (2020) 12 SCC 695 had discussed the law on this issue. The relevant observations Page 6 of 10 CR no. 154/2024 Suman Dixit Vs State & Anr of Hon‟ble Apex Court in Bhaskar Industries Ltd. (supra) in this regard read as under:
"14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case.
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17. 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 to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.
18. A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding with the case? We may point out that the Page 7 of 10 CR no. 154/2024 Suman Dixit Vs State & Anr legislature has taken care for such eventualities. Section 205(2) says that the 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.
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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. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further..."
(Emphasis supplied)
14. In the present case, the accused Suman Dixit is facing trial for the offence under Section 506 IPC. She is stated to be suffering from Megakaryocytic Thrombocytopenia which is a rare auto immune disorder affecting the blood platelet count. Although there is no advise given by the doctors against travel but the physical Page 8 of 10 CR no. 154/2024 Suman Dixit Vs State & Anr and medical condition of the accused should also have been considered by the Ld. Trial Court while dismissing the application for exemption of the accused. Even if we look into the allegations made in the FIR, the allegations against the applicant are merely of threatening to implicate the complainant in a false case, which falls under Part-I of Section 506 IPC and are bailable. Moreover, the court can always direct the applicant to appear physically on the dates when her personal physical appearance is required by the court and on other dates, she can be permitted to appear through counsel. Section 317(1) confers the discretion and power on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings and the Magistrate can even resort to other steps for enforcing such attendance. The purpose of seeking the personal appearance of accused is that trial of the case should not suffer due to absence of the accused but if the accused is duly represented by a counsel on each and every date, then there should not be any objection in granting the relief to the accused, particularly in view of her peculiar medical condition.
11. Appreciating the facts of this case, statues and in the backdrop of the above case laws, revision petition is allowed and the order passed by the Ld. Trial Court dated 13.12.2023 is set aside.
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12. Copy of this order be sent to the Ld. Trial Court.
13. Revision file be consigned to Record Room after due compliance.
MANU Digitally by MANU signed GOEL KHARB GOEL Date:
KHARB 2025.03.01 17:42:45 +0530 Announced in the open Court today i.e. 01.03.2025 (Manu Goel Kharb) Special Judge (NDPS)-02 Dwarka Courts, New Delhi Page 10 of 10