Allahabad High Court
Lee Kun Hee vs State Of U.P. And Another on 17 July, 2014
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 51 Crl. Misc. 482 Cr.P.C. Application No. 24003 of 2014. Lee Kun Hee .... Applicant. Versus State of U.P. and another .... Opposite Parties. Hon'ble Ramesh Sinha, J.
1. Supplementary affidavit filed today by learned counsel for the applicant is taken on record.
2. The present matter has come up before this Court after a nomination by Hon'ble The Chief Justice vide order dated 14.7.2014 in pursuance of a judicial order passed by another Bench of this Court on 10.7.2014 which is quoted hereinbelow:-
"Parcha filed by Mr. Vinay Saran, Advocate, on behalf of complainant, is taken on record.
The preliminary objection has been raised that earlier petition under section 482 Cr.P.C. No.14958 was filed, which was considered by detailed and reasoned order. The petition was dismissed on 30.5.2013 by Hon'ble Ramesh Sinha (J.) with the observation that the petitioner was fugitive from justice, who did not surrender to the jurisdiction of the Court and who disobeyed and flouted the order of the court. Against that order special leave petitions No.4905 of 2013 and 5278 of 2013 were filed before the Apex Court, which were dismissed with the observation that warrant of arrest issued against the applicant should not be executed for a period of six weeks. In the meanwhile petitioner should appear before the trial court and seek bail or exemption from appearance, in accordance with law. However, applicant did not appear in compliance of order before the court concerned within time.
In view of the fact, let this matter be placed before Hon'ble Ramesh Sinha, J. after obtaining nomination from Hon'ble The Chief Justice, if possible, on 17.7.2014 as fresh."
3. The present 482 Cr.P.C. has been filed praying for setting aside the order dated 2.6.2014 passed by IInd Additional Chief Judicial Magistrate, Ghaziabad in Complaint Case No. 1086 of 2009 under Sections 403, 405, 423, 120-B/34 I.P.C. dismissing the application moved by the applicant under the provisions of Section 205/317 Cr.P.C. to exempt the applicant from personal appearance.
4. Brief facts of the case are that M/s JCE3 Consultancy, opposite party no.2 (hereinafter referred to as 'the complainant') filed a complaint in the Court of Chief Judicial Magistrate, Ghaziabad against the Samsung Gulf Electronics (FZE) and others including the applicant on the ground that a Bill of Exchange dated 1.2.2002 purportedly drawn by Samsung Gulf Electronics (FZE) in favour of the one M/s Sky Impex had been endorsed to them and that Samsung Gulf Electronics (FZE) had failed to make payment in relation to the same and the complainant has been cheated of 1.4 million Dollar.
5. The facts of the present case has already been narrated by this Court in its order dated 30.5.2013 passed in Crl. Misc. 482 Cr.P.C. Application No. 14958 of 2013, hence the same is not repeated for the sake of brevity.
6. It appears from the record of the case that against the order dated 30.5.2013 passed by this Court, the applicant, preferred Special Leave Petition No. 4905 of 2013 before the Apex Court in which notice were issued to opposite party no. 2 and the order was passed by the Apex Court. The operative portion of which is quoted hereinbelow:-
"We, however, make it clear that we are not expressing any opinion in so far as the sustainability of the complaint is concerned as that obviously might be the subject matter of trial unless of course the same gets quashed or set aside by the appropriate forum. But in so far as the warrants of arrest is concerned, the same is clearly unsustainable at this stage for the reasons indicated hereinbefore. The warrant of arrest, therefore, shall remain stayed.
The special leave petition, however, be listed for final disposal on 23rd of July, 2013.
In the meantime, the respondent is at liberty to file his reply in the matter.
After the summons are served on the petitioner, the petitioner or his counsel who represents him in the trial court shall be allowed to advance his submissions. This, however, should not be interpreted that we have granted exemption to the petitioner from appearance. If the petitioner seeks such permission, he will be at liberty to approach the trial court and make a prayer to that effect"
7. Thereafter, the aforesaid SLP came up for final hearing before the Apex Court on 31.3.2014 which was dismissed by the Apex Court and the order passed by it is quoted hereinbelow:-
"The special leave petition is dismissed.
However, the warrant of arrest issued against the petitioner shall not be executed for a period of six weeks from today.
In the meanwhile, the petitioner shall appear before the trial court in seisin of the case and seek bail and/or exemption from appearance in accordance with law.
We make it clear that we have not expressed any opinion in regard to the merit of the case.SLP (Crl.) No. 5278 of 2013
In view of the above order passed in SLP (Crl) No. 4905 of 2013, learned counsel for the petitioner prays for withdrawal of this petition.
The special leave petition is dismissed as withdrawn accordingly."
8. It is apparent from the order dated 31.3.2014 passed by the Apex Court that another SLP (Crl.) No. 5278 of 2013 was also filed by opposite party no.2 before it which was dismissed as withdrawn in view of the order passed in the SLP NO. 4905 of 2014 on the request of counsel for the petitioner in the said case,
9. Thereafter the applicant filed an application under Section 205/317 Cr.P.C. some time in May, 2014 for grant of exemption from personal appearance before the Court of Additional Chief Judgicial Magistrate, Ghaziabad in Complaint Case No. 1086 pf 2009 under Sections 403, 405, 423, 120-B/34 I.P.C.,in view of the order dated 31.3.2014 passed by the Apex Court in SLP No. 5905 of 2013. The opposite party no. 2 filed an objection to the application of the applicant claiming exemption under Section 205/317 Cr.P.C. The learned Magistrate after hearing the counsel for the parties rejected the exemption application of the applicant vide order dated 2.6.2014 and issued non bailable warrant against the applicant and other co-accused persons for securing their presence before it. Aggrieved by the said order, the applicant has preferred the present 482 Cr.P.C. application.
10. Learned counsel for the applicant submits that the learned Magistrate has committed gross illegality in rejecting the exemption application filed by the applicant praying for exempting his personal appearance as the applicant resides in South Korea and is aged about 72 years. Insistence on his personal presence would cause him extreme physical hardship on account of long journey compounded by his advancing age. On the other hand, no prejudice would be caused to the complainant any any manner while dispensing with the applicant's personal presence. He argued that the complainant can proceed with his pre-charge evidence in order to reach the stage for appearance of the applicant as per the MHA and MEA guidelines. Therefore, the exemption if extended would not hamper the progress of the complaint, but rather would facilitate the same.
11. He urged that in view of the settled law of the land it can be safely concluded that a Court should be generous and liberal in exercising the powers conferred under Section 205 and 317 of Cr.P.C. and grant exemption to the applicant from personal appearance except when the presence of the applicant is imperatively needed. It was further argued that it has been held in several pronouncement of various courts of the country including the Apex Court that the learned Magistrate should consider the nature of aberration alleged, prima facie material for acceptance of such allegation, possibility of mala fide allegation, prejudice if any likely to be caused if personal attendance is not made. The Court should weigh the inconvenience that is likely to be caused to the accused if he is required to be absent from his vocation, profession, trade, occupation and calling for attendance in Court and whether prejudice is likely to be caused if he does appear in Court. He further submits that the Magistrate has wide powers to exercise his discretion and dispense with the personal appearance of the applicant at all stages of the proceedings. In the present facts and circumstances of the case, the learned Magistrate has not exercised his discretion in a judicial manner though the Apex Court had given opportunity to the applicant to move an exemption application from appearance in accordance with law, hence the impugned order passed by the learned Magistrate be set aside by this Court as it is against the letter and spirit of the order of Apex Court passed on 31.3.2014.
12. Per contra, Sri Vinay Saran, learned counsel for the complainant has vehemently opposed the prayer for quashing of the impugned order passed by the Magistrate rejecting the exemption application moved on behalf of the applicant and issuing non bailable warrant against him. He argued that the said order passed by the Magistrate is not against the verdict of the Apex Court dated 31.3.2014 and submitted that the arguments raised by the learned counsel for the applicant is wholly unfounded as the Apex Court has only directed the warrant of arrest issued against the applicant shall not be executed for a period of six weeks from the order dated 31.3.2014 passed by the Apex Court during which period the applicant shall appear before the trial court in seisin of the case and seek bail and/or exemption from appearance. He vehemently argued that the applicant is absconding from the clutches of law for the last nine years. Summons were issued against the applicant by the trial court on 12.1.2005 and when he failed to appear before the court on 3.2.2005 bailable warrants have been issued against the applicant including other applicants and further on their non appearance, the trial court on 16.3.2005 issued non bailable warrant against applicant and other co-accused persons but the applicant did not surrender before the court of law till date and has indulged in series of litigation right from the year 2005 till date in various forums before the trial court, this Court as well as Apex Court and is now interpreting the order of the Apex Court according to his own whims and without appearance and surrender before the trial court and further not seeking bail from the competent court. He has moved an application for exemption of his personal appearance permanently which is against the various pronouncement of this Court as well as of the Apex Court and further the exemption application moved by the applicant is misuse of process of law and making mockery of the Courts of the country. The applicant is obstructing the process of trial by applying every sort of devour strategies for subverting the judicial process. The accused applicant has no respect to rule of law of India. Being a foreigner, he is taking the Indian Judicial System for granted, and even flouted the order of the Apex Court time and again. Hence the order passed by the learned Magistrate is absolutely just in the eyes of law and present 482 Cr.P.C. application be dismissed.
13. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Mohit Singh, learned counsel for the applicant, Sri Vinay Saran and Sri D.K. Singh, learned counsel for the complainant as well as Sri R.K Maurya, learned A.G.A. for the State.
14. From a perusal of the record, it is apparent that the present case was instituted against the applicant in the year 2005 and summons were issued against him and other co-accused persons by the trial court on 12.1.2005 for facing trial under Section 403, 405, 420, 423, 120B/34 I.P.C., but the applicant did not appear before the trial court and on 3.2.2005 initially bailable warrants were issued against the applicant and other co-accused persons and ultimately on 16.3.2005 on his non appearance non bailable warrant was issued against the applicant and other co-accused persons by the Magistrate. In the year 2006, the trial court sent the non bailable warrant to the Interpol for issuance of Red Corner Notice against the applicant. Thereafter the applicant has indulged series of litigation before the trial court, this Court as well as before the Apex Court and the order passed by the trial court summoning the applicant and his prosecution has been affirmed by the Apex Court.
15. It further appears from the record that the applicant has in pursuance of the complaint filed against him and other co-accused persons and their prosecution in the case for the said offences has approached this Court on one count or the other . This Court has lastly rejected his application being Crl. Misc. 482 Cr.P.C. Application No. 14958 of 2013 vide order dated 30.5.2013. Aggrieved by the said order the applicant moved an S.L.P. No. 4905 of 2013 before the Apex Court which was finally dismissed by the Apex Court with the following observations:-
"The special leave petition is dismissed.
However, the warrant of arrest issued against the petitioner shall not be executed for a period of six weeks from today.
In the meanwhile, the petitioner shall appear before the trial court in seisin of the case and seek bail and/or exemption from appearance in accordance with law.
We make it clear that we have not expressed any opinion in regard to the merit of the case"
16. It is evident from the impugned order passed by the learned Magistrate that he has well considered the exemption application of the applicant as well as the objection filed by opposite party no.2 taking into account the order dated 31.3.2014 passed by the Apex Court on each and every aspect of the matter and has rightly rejected the exemption application of the applicant. In my considered opinion, the exemption application which has been moved by the applicant in the light of order dated 31.3.2014 passed by the Apex Court also appears to be against the letter and spirit of the order of Apex Court which directed that warrant of arrest issued against the applicant be not executed for a period six weeks during which period the applicant was directed by the Apex Court to appear before the trial court in seisin of the case and seek bail and thereafter if any exemption application for dispensing the personal appearance of the applicant was moved that was directed to be considered by the learned Magistrate in accordance with law but from the conduct of the applicant it is apparent that he does not want to appear before the trial court nor want to seek bail from the competent court and had directly moved the application for exemption of his personal appearance permanently which cannot be justified in the eyes of law.
17. From the impugned order passed by the learned Magistrate, it also appears that earlier also similar application for exemption of his personal appearance was moved on 23.3.2012 under Section 205 Cr.P.C. before the court below and the same was rejected by the Magistrate on 15.6.2012 against which the applicant preferred a petition before this Court but his prayer was not accepted by this Court too. The learned Magistrate was of the view that the applicant is a foreign national and the offence against him is serious nature hence in order to secure his presence before this Court it is necessary that he should obtain bail in the case. The conduct of the applicant reflects that he is absconding from the clutches of law for the last 9 years and has no intention to surrender before the law of the land and has flouted the orders of the court of law even the orders of the Apex Court which has repeatedly granted him indulgence in staying his warrant of arrest but then too he has not appeared nor surrender nor obtained bail from the competent court of the country, hence the learned Magistrate has rightly not exercised his discretion as per the provisions of Section 205 read with 317 Cr.P.C.
18. In this regard the judgment of the Delhi High Court in the case of Kajal Sengupta vs. M/S Ahlcon Ready Mix decided on 27th April, 2012 is relevant for consideration. The extract of which has been reproduced hereinbelow:-
"11. The concept and purpose of securing bail by the accused person from the concerned Court is mutually exclusive to the purpose of grant of personal exemption from appearance. It is a part of Court proceedings when a person is enlarged on bail by the Court, with an undertaking to the Court he being an accused in the offence, shall attend the court during trial. Furnishing of bail bonds and surety by the conditions of bail and any subsequent order of the court requiring his attendance in Court. On the other hand, personal exemption from appearing can be requested by the accused to the Magistrate, either permanently or on a particular date. The Magistrate may, subject to certain conditions and directions, allow the personal exemption of the accused. However, such permanent personal exemption cannot be construed or understood to be a blanket order dispensing with the appearance of the accused and shall be subject to Section 205 (2) and Section 317 (1) of the Cr.P.C.
12. Now, if at any subsequent stage, the Magistrate desires the presence of the accused person, he may summon him to appear in person, and in failure to do so, he may take coercive steps by forfeiting the bail bond or attach his movable property. This procedure, could only be effective if the accused had previously surrendered to the Court and obtained bail by furnishing bail bond and surety. The two proceedings which are apparently independent, seen to converge at this juncture.
13. Therefore, the processes of bail and personal exemption from appearance, broadly operate in different spheres of the trial, though are intrinsically connected."
19. It is important to take note of a judgment of this Court in the case of Dashrath and others vs. State of U.P. through Secretary Home Deptt., Lucknow and another decided on 31.7.2013, wherein this court has rejected the application u/s 205 Cr.P.C. of the accused who moved an exemption application for dispensing his personal appearance without getting himself bailed out from the competent court. The relevant portion of which is being reproduced hereinbelow:-
"My attention has been drawn towards the provision of Section 205 Cr.P.C. where a Magistrate may dispense with personal appearance/attendance of accused. It provides that when Magistrate issue a process and if he thinks fit to dispense with the personal attendance of the accused he may permit the accused to appear through advocate. The Magistrate was also authorized to exempt the attendance of the accused person at his own discretion during pendency of the case. Section 205 Cr.P.C. come only in operation when Magistrate is exercising the jurisdiction under Section 204 Cr.P.C. for summoning the accused person or thereafter. Once the power has been exercised under Section 204 Cr.P.C. to summon the accused and discretion has not been exercised by the Magistrate to dispense with the attendance of accused the attendance of such accused can be dispenses with in further proceeding upon putting his appearance before the court within the meaning of Section 436 or 437 Cr.P.C. as the case may be.
Hence, this Court cannot grant any relief to the petitioner by permitting him to appear before trial court to participate in the trial without getting him bailed out."
20. Thus from the aforesaid two judgments of the High Courts and various other judgments of the Apex Court referred by the Magistrate in the impugned order and taking into account the conduct of the applicant, who has been avoiding the proceedings of criminal case pending against him for the last nine years and has not even abide by the orders/directions of the Apex Court given on 31.3.2014, the exemption application of the applicant moved under Section 205/317 Cr.P.C. was rightly rejected by the Magistrate as the applicant failed to appear and surrender before the court below and has also not obtained bail from the competent court and has straightway moved an exemption application for dispensing his personal appearance permanently which in my humble opinion probably is also not the intent of the order passed by the Apex Court on 31.3.2014.
21. The application lacks merit and is accordingly dismissed.
Date 17.7.2014.
Shiraz.