Jharkhand High Court
Fulchand Mahto vs The State Of Jharkhand on 5 September, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2031 of 2022
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Fulchand Mahto ... .... Petitioner
Versus
1. The State of Jharkhand
2. Renu Devi ... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Pratik Sen, Advocate
For the State : Mr. V.K. Vashistha, Spl. P.P.
For the O.P. No. 2 : Ms. Apurwa Pathak, Advocate
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Oral Order
11 / Dated : 05.09.2023
1. The instant cr. misc. petition has been filed for quashing the order dated 03.06.2022 by which the petition filed under Section 205 Cr.P.C. in connection with Ormanji P.S. Case No. 59 of 2014 (G.R. No. 2406 of 2014) under Sections 406, 420, 323, 506 of IPC has been rejected.
2. The petitioner is accused no. 1 in the complaint petition which is the basis of the present police case.
3. The case in brief is that the petitioner on 09.06.2012 entered into an agreement of sale with the complainant and received Rs.21,000. It is alleged that a sum of Rs.6,00,000 in all, has been received by the accused persons but the sale deed was not executed as the permission was not granted under Section 46(4) of CNT Act. After cognizance process has been issued. Initially, summon was issued on 16.06.2022 and without receipt of service of report, warrant of arrest has been issued.
4. The petitioner filed a petition under Section 205 Cr.P.C. before the court below for exemption from appearance on the specific ground of his age of 93 years but the same has been rejected and aggrieved by the said order, the instant quashing petition has been filed on the ground that as non-bailable warrant has been issued, therefore, petition under Section 205 Cr.P.C. is not maintainable.
5. It is submitted by learned counsel for the petitioner that other two accused persons in the instant case are his sons who are on bail in the present case. The prayer for exemption from personal appearance is made by relying 2017 SCC OnLine Ker 6360 para 11 and 14 and (2020) 12 SCC 695 (Puneet Dalmia Vs. Central Bureau of Investigation, Hyderabad). The Hon'ble Supreme Court in Puneet Dalmia has held that even in serious offence permission for exemption from personal appearance can be allowed in exceptional cases.
6. Learned counsel for the State has opposed the quashing petition and submitted that Section 205 Cr.P.C. specifically applies to the case where summon has been issued and not when warrant of arrest has been issued against the accused.
7. Matter for consideration is whether considering the age of the Petitioner, he can be exempted from personal appearance?
8. At the outset it should be noted that facts of the present case is very different from the ratio laid down in Puneet Dalmia (supra) which was concerned with an accused who had been attending the trial since 2013 and had to face undue hardship in attending the court on each and every date. The present case is of the year 2014 and from the order of the learned court below it appears that the anticipatory bail application of the petitioner was rejected by this court. Despite the said rejection he has not appeared before the learned Court below.
9. Criminal Procedure Code is a substantive Code with respect to the provisions laid down by it. Mandate of the Code is personal appearance of the accused at the stage of trial, and exceptions to it had been carved out in the form of provisions like Section 205 and Section 317 of the Cr.P.C. In order to appreciate the law as laid down by the legislature, it will be desirable to reproduce these provisions which are as under.
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.
(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.
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 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.
10. Exemption under section 205 can be granted normally in offences triable by the court of magistrates where summons have been issued. After cognizance, u/s 204(1)(b) in a warrant-case the magistrate may issue a warrant, or, if it thinks fit, a summons. When these provisions are looked together it is evident that Section 205 is intended for offences which are triable by magistrate and where summons have been issued.
11. The scheme of the Code envisages distinct provisions as per the nature and gravity of offence and lays down different procedure in offences of different nature. Thus, the procedure for trial differs as per the nature of offence, be that summary trial, summons trial, warrants trial or sessions trial. To import the provision of section 205 Cr.P.C which is intended for minor offences, in offences of serious nature will not be in consonance with its letter and spirit. It has been held in Lily Begum v. Joy Chandra Nagbanshi, (1994) 2 SCC 39 in a case u/s 376,417 and 506 Hon'ble Supreme Court held that the reasons given by the High Court to dispense with the personal attendance of the respondent (accused) by invoking the powers under Section 205 of the Code of Criminal Procedure is untenable especially in a case of this nature, wherein serious allegations are made against the respondent (accused). If such a privilege, in our opinion, is given to an accused in a case of this nature, people will lose their confidence in the administration of justice. Considering the nature of offence and rejection of anticipatory bail application of this Petitioner by this Court way back in 2015, this Court is of the view that the instant case is not fit for grant of exemption from personal appearance of the Petitioner.
The petitioner is directed to surrender before the learned court below within three weeks and seeks regular bail, which will be disposed of considering the principle laid down by Hon'ble Apex Court in Satender Kumar Antil v. CBI, (2021) 10 SCC 773.
Criminal Miscellaneous Petition stands dismissed.
(Gautam Kumar Choudhary, J.) AKT Uploaded