Jharkhand High Court
Bharat Pandey And Ors. vs State Of Jharkhand on 28 March, 2006
Equivalent citations: [2006(3)JCR111(JHR)], 2006 CRI LJ (NOC) 468, 2006 (2) AIR JHAR R 464, (2007) 2 JLJR 635, (2006) 3 JCR 111 (JHA)
ORDER D.K. Sinha, J.
1. The petitioners have preferred the petition under Section 482 of the Code of Criminal Procedure with a prayer to set aside part of the order impugned dated 26.2.2006, passed by the Judicial Magistrate in T.R. Case No. 1059 of 2006, presently pending in the Court of Sri Manish Kumar, Judicial Magistrate, 1st Class, Bermo at Tenughat whereby and whereunder the petitioner filed on behalf of the petitioners under Section 205(1) of the Code of Criminal Procedure for dispensation of their personal appearance was rejected arising out of Gomia P.S. No. 20 of 2002.
2. The brief fact of the case in that on 14.2.2002, the Sub- Divisional Officer, Bermo at Tenguhat examined the Kathara Coal Washery and found that good coals were being sold with rejected one treating it as the rejected coal and by the order of the Deputy Commissioner the sale was stopped. An enquiry was made, but in the meantime, the Sub-Divisional Officer gathered that the evidence of such mixture of good as well as rejected coals were being removed by dozering the dump of the said coal. The matter was again enquired into and it was found true. On the behest of Sub-Divisional Officer and on presentation of written report, the present case was instituted for the offence under Sections 406/467/468/409/420/201/120-B of the Indian Penal Code against certain persons and not the petitioners. The police after investigation submitted charge-sheet against the petitioners including one Sheo Kumar Mishra for the offence under Sections 406/409/420/511/120-B of the Indian Penal Code. Accordingly, the cognizance of the offence was taken in the aforesaid sections by discharging the dozer owner and one N.K. Singh, the then General Manager of the said Washery, though they were named in the First Information Report.
3. The learned Counsel submitted that the petitioners are highly placed officers and that their personal attendance would affect the business of their offices and that it would not call for prejudice to the prosecution If their petition under Section 205 of the Code of Criminal Procedure would have been allowed. The petition was rejected by the order impugned basically on the ground that cognizance was taken by the Additional Chief Judicial Magistrate of the offence against the petitioners and that the allegations were of serious nature. It was also stated that the petitioners though were highly placed officers but on such ground their personal attendance cannot be dispensed with.
4. Learned Counsel appearing on behalf of the petitioners submitted that there was no material available in course of investigation against the petitioners by the CID, but observation of the Superintendent of Police, CID based upon speculation that their connivance in the alleged offence cannot be ignored may not be ground for their implication in the alleged offence. Petitioners were arrested by the Investigating Officer on 6.11.2004, but were released on bail under Section 169 of the Code of Criminal Procedure by the police for want of sufficient evidence. Advancing his argument learned Counsel submitted that since there was no sufficient material against the petitioners and they were let off on the police bail and that they were holding responsible posts in different capacity, their prayer for dispensation from their personal attendance in the Court may be considered with the permission to be represented through their Lawyer in the trial Court.
5. Reliance has been placed upon the decision Hon'ble Supreme Court in Bhaskar Industries Ltd. v. Hiwani Denim and Apparels Ltd. and Ors., held as under:
Section 251 and 205(1) make it clear that 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 presented by a counsel in that case) even for proceeding with the future 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 roceedings including examination of the witness.
6. A Bench of this Court in Dr. (Mrs.) Karuna Jha v. State of Jharkhand and Anr. reported in 2005 (1) East Cr C 176 (Jhr) held as under:
In the case of Ram Harsh Das v. State of Bihar reported in 1998 (1) All PLR 495, a Division Bench of the Patna High Court while appreciating the provision observed that the Magistrate can exercise power conferred upon him under Section 205, Cr PC even in warrant cases, provided he had issued summons instead of issuing the warrant. The Court further observed that in a case where a warrant has been issued at the first instance, the power under Section 205, Cr PC cannot be exercised. The Court also held that there is no hard and fast rule which can be laid down for deciding the question of grant or refusal of prayer for dispensing the personal attendance.
7. Under the facts and circumstances the petition filed under Section 482 of the Code of Criminal Procedure by the petitioners is allowed and the petitioners are dispensed with their personal attendance with the direction that they would appear through their Lawyer/Lawyers on giving undertaking to the satisfaction of the concerned Court that they would not dispute their identity as the particular accused in the said case and that their counsel/counsels would remain present in the Court and that there would not be objection on their part in recording of prosecution evidence in their absence. It is observed that at any time in course of trial, if the trial Court finds that the presence of the petitioners is required then for the reasons to be recorded, the Court may direct the accused to remain physically in attendance and the petitioners in such case would not avoid to attend the Court.
This petition is allowed with the aforesaid observation and directions.