Jharkhand High Court
Riaz Khan Faridi vs The State Of Jharkhand Through Central ... on 9 August, 2017
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 2557 of 2016
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Riaz Khan Faridi, S/o of Sh. Shamsuddin Khan, R/o 92, Magistic Nagar,
Khajrana Road, P.O. & P.S. Indore, District-Indore, Madhya Pradesh.
.....Petitioner
Versus
The State of Jharkhand through Central Bureau of Investigation
.....Opposite Party
With
Cr. Revision No. 1422 of 2016
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Riaz Khan Faridi, S/o of Sh. Shamsuddin Khan, R/o 92, Magistic Nagar,
Khajrana Road, P.O. & P.S. Indore, District-Indore, Madhya Pradesh.
.....Petitioner
Versus
The State of Jharkhand through Central Bureau of Investigation
.....Opposite Party
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Soumitra Sen, Sr. Advocate
For the CBI : Mr. Rajiv Sinha, Advocate
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C.A.V. On 19.07.2017 Pronounced on 9__/08/2017
Heard the parties.
In Cr. Revision No. 1422 of 2016, challenge has been made to
the order dated 6.9.2016, by which the application filed by the
petitioner under section 205 Cr.P.C. has been rejected.
In Cr. M. P. No. 2557 of 2016, order dated 3.10.2016 is under
challenge, by which since the petitioner had failed to be physically
present on 3.10.2016, non bailable warrant of arrest has been issued
against the petitioner.
Since common questions of law and facts are involved in both
these applications, the same are being disposed of by this common
order.
An allegation was made that Doctor Pradip Kumar functioning
as the Secretary of the Health Department during the period 2008-09
entered into a criminal conspiracy with Dr. Vijay Shankar Narayan
Singh, State RCH Officer, Namkum Ranchi with some unknown
officials of the Health Department as well as with some private
persons and by abusing their respective official position dishonestly
purchased medicines, medical equipments/appliances, sundry items
etc. used in the hospital from nineteen suppliers without assessing
the actual requirement and without observing the formalities
necessary to be followed. The fund was allotted in the National Rural
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Health Mission ( NRHM) and was financed by the Government of
India. It is alleged that more amount was spent than the allocated
budget. Further allegation has been made that medicines and
equipments have been purchased at exorbitant rate and in excess
without ascertaining the requirement by procuring false documents
to show excess consumption of requirement of medicines and
equipments.
Based on the aforesaid allegations, an FIR was instituted by the
CBI being RC 11(A)/2009-AHD(R). After investigation, chargesheet
was submitted and cognizance was taken under sections 120B, 420,
467, 468 and 471 of the Indian Penal Code and Section 13(i)(c)13(i)
(d) read with Section 13 (2) of the Prevention of Corruption Act.
The petitioner being one of the accused had challenged the
entire criminal proceeding in Cr.M.P. No. 2635 of 2012 and this Court
by order dated 5.4.2013 had quashed the entire criminal
proceedings. The State through CBI had preferred an appeal before
the Hon'ble Supreme Court in Special Leave to Appeal (Crl) No. 4259
of 2014 and the order of this Court quashing the entire criminal
proceeding was set aside. A review was also preferred by the
petitioner, which was also dismissed.
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
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court below under section 205 of Cr.P.C., which was rejected vide
order dated 6.9.2016 and which is impugned to Cr. Revision No.1422
of 2016.
Mr. Soumitra Sen, learned senior counsel for the petitioner, has
submitted that the petitioner is the Executive Director of M/s
Microgen Hygiene Pvt. Ltd., which is an exclusive agent of M/s
Microgen Inc., USA. It has been submitted that petitioner has to be
always sincere to promote the products of the company and create
awareness about the company. Learned senior counsel submits that
the petitioner is suffering from several diseases including
Hypertension, Cerebral Palsy and other diseases. Learned senior
counsel submits that in the chargesheet, it could be deciphered that
the money trail is complete except that of the petitioner. It has
further been submitted that question of delay cannot be made
attributable in an application under section 205 Cr.P.C. to the
petitioner as the criminal case itself was quashed until it revived by
virtue of the order of this Court having been set aside by the Hon'ble
Supreme Court. Learned senior counsel also submits that question of
delay in an application under section 205 Cr.P.C. cannot arise. It has
been submitted that on the delay point, the Trial Judge has basically
evaluated the pre-quashment stage without considering the
intervening period when the proceedings were quashed and were
subsequently revived. Learned senior counsel submits that as such
between 5.4.2013 and 20.9.2015, no case was pending against the
petitioner and therefore there was never any issue of delay. It has
also been stated that time petition preferred by the petitioner had
been rejected without considering the prescriptions which had been
brought on record to substantiate the fact that the petitioner was
suffering from illness. Learned senior counsel thus submits that the
impugned orders show total non application of mind on the part of
the learned Special Judge and therefore requires to be set aside.
Furthering his argument, it has been submitted that
parameters required to be dealt with for consideration of an
application under section 205 Cr.P.C. have not been done. It has been
stated that petitioner is stationed at Mumbai and therefore it would
be very difficult on the part of the petitioner to attend the
proceedings. Further submission has been advanced that the
background referred by the learned court below does not have any
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relevancy since the proceedings were already quashed.
In support of 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
under section 205 Cr.P.C. before the learned court below. The
petitioner claims dispensation of his personal appearance on the
ground that the petitioner being the Executive Director of M/s
Microgen India has to frequently travel as also on the ground that the
petitioner is suffering from Coronary artery disease, Cerebral Palsy,
Diabetes, Hypertension and host of other diseases. The grounds
taken by the petitioner in his application under section 205 Cr.P.C.
seems to be contradictory since on the one hand he claims to be
travelling widely and on the other hand he seems to be a person
suffering from large number of ailments. It is true that criminal
proceedings were quashed by this Court on 5.4.2013 but the position
was restored when the Hon'ble Supreme Court had set aside the
order passed by this Court on 29.9.2015. For the period 5.4.2013 to
29.9.2015, it cannot be said that the petitioner 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. After the Hon'ble Supreme Court had set aside the order of this Court, -5- fresh summons were issued on 19.11.2015. Thereafter on 20.07.2016, the application was preferred by the petitioner under section 205 of Cr.P.C. The impugned order dated 6.9.2016 seems to have merely dealt with the allegations against the petitioner and the prequashment stage, by virtue of which, proclamation and process under sections 82 and 83 Cr.P.C. respectively had also been directed to be issued and the records were directed to be split up so far as petitioner is concerned. It further appears that the primary consideration which had weighed in the mind of the learned court below was the coercive steps directed to be taken for securing the attendance of the petitioner and the fact that in spite of issuance of fresh summons on 19.11.2005, the petitioner did not appear. 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.
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 reas- ons, can't the court afford relief to such an accused in the matter of fa- cing the prosecution proceedings?
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 admin- istration 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 -6- 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 ac- cused 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".
Mr. Rajiv Sinha, learned counsel for the CBI, has referred to paragraph 19 of the same judgment, which reads as follows:-
" 19. The position, therefore, boils 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 on 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".
What could thus be culled out from the judgment referred to above is that the Magistrate 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 3.10.2016 is also quashed and set aside.
-7-As a cumulative result of the discussions made hereinabove, the impugned order dated 6.9.2016, passed by the learned Special Judge, CBI, Ranchi in connection with RC 11(A)/2009-AHD(R) which is the subject matter of Cr. M.P. No. 2557 of 2016 is hereby quashed and consequently order dated 3.10.2016 passed by the same Court is also set aside. Both the applications are allowed.
(Rongon Mukhopadhyay, J) Rakesh/