Calcutta High Court (Appellete Side)
Ct No.34 Shakti Shankar Bagchi vs State Of West Bengal on 23 September, 2022
IN THE HIGH COURT AT CALCUTTA 23-09-2022
Criminal Revisional Jurisdiction Subha Item no.18 CRR 3062 of 2022 Ct no.34 Shakti Shankar Bagchi
-versus-
State of West Bengal Mr. Shakti Shankar Bagchi Petitioner in person.
Re : An application under Section 482 of the Code of Criminal Procedure.
The petitioner is aggrieved on various issues apart from the subject matter of the order dated 29-07-2022 passed by the learned Judicial Magistrate, 2nd Court, Berhampore in CR 122 (C) of 2009.
So far as the other issues are concerned, the same cannot be a subject matter of this revisional application. However, the petitioner would be at liberty to canvass such points before the appropriate authorities and the courts having determination.
The order dated 29.07.2022 is in respect of an order passed by the learned Judicial Magistrate, 2nd Court, Berhampore thereby allowing the application under Section 205 of the Code of Criminal Procedure.
The grievance of the petitioner is not regarding the merits of the order being passed but the primary grievance of the petitioner is that without a copy of the application under Section 205 of the Code of Criminal Procedure being served upon him he had to write 'seen' and his written objection was also not accepted. The court proceeded to allow the application under Section 205 of the Code of Criminal Procedure.
I have no issues regarding the fact that whether the application under Section 205 of the Code of Criminal Procedure should be allowed or not, but so far as the 2 primary grievance of the petitioner is concerned that he was not handed over with a copy of the application under Section 205 of the Code of Criminal Procedure or his objection to the application under Section 205 of the Code of Criminal Procedure was not accepted is to be addressed.
The order dated 29-07-2022 reflects that the petitioner being the complainant was present and raised vehement objection but it is not reflected that any written objection filed in respect of the application under Section 205 of the Code of Criminal Procedure filed at the instance of the accused was filed.
Without expressing any opinion in respect of the order passed on merits and by taking into account the settled proposition of law in Puneet Dalmia -vs- CBI reported in (2020) 12 SCC 695, I am of the view that paragraph 5 of the said judgement requires consideration.
5. "Heard the learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the appellant is required to appear before the learned trial court on every Friday and the appellant as such is appearing before the learned trial court on each and every Friday since 2013. Nothing is on record that at any point of time the appellant has tried to delay the trial. The appellant is represented through his counsel. The appellant is a permanent resident of Delhi. He is the Director on the Boards of several companies. The distance between Delhi and Hyderabad is approximately 1500 km. Therefore, the appellant sought for exemption from personal appearance before the learned trial court on each and every Friday and submitted the application under Section 204 CrPC and submitted that on all dates of adjournments, his counsel Shri Bharadwaj Reddy shall appear and no adjournment shall be asked for on his behalf. In Bhaskar Industries Ltd. (Bhaskar Industries Ltd. v. bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401: 2001 SCC (Cri) 1254) and Rameshwar Yadav (RameshwarYadav v. State of Bihar, (2018) 4 SCC 608 : (2018) 2 SCC (Cri) 585), this Court had the occasion to consider the scope and ambit of the application under Section 205 CrPC. In Bhaskar Industries Ltd. (Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254), this Court has observed that 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 the accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an accused in the matter of facing the 3 prosecution proceedings. It is observed and held by this Court in the aforesaid decision that 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".
So in a case of such a nature, the learned Magistrate is empowered to pass the order, but at the same time the complainant at whose instance the criminal law is set into motion must also be given an audience for filing his objections while considering an application for dispensing with day to day appearance of the accused.
Having regard to the grievance of the present petitioner, I direct that the petitioner would file his objection to the application under Section 205 of the Code of Criminal Procedure, which if not served, be served in the meantime. The said process should be completed by 30th September, 20222. The learned court on the day of re- opening would rehear the matter and in accordance with the observations of the Hon'ble Supreme Court as referred to above, dispose of the application filed under Section 205 of the Code of Criminal Procedure.
With the aforesaid observations, the revisional application being CRR 3062 of 2022 is disposed of.
Pending applications, if any, are consequently disposed of. All concerned parties are to act in terms of a copy of this order duly downloaded from the official website of this court.
[Tirthankar Ghosh, J] 4