Himachal Pradesh High Court
Anil Kumar vs State Of H.P on 22 May, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No. 153 of 2018
.
Decided on : 22.5.2018
Anil Kumar .....Petitioner.
Versus
State of H.P. ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Rajender Sharma, Advocate.
For the Respondent: Mr. Hemant Vaid, Additional Advocate
General with Mr. Yudhveer Singh
Thakur, Deputy Advocate General and
Mr. Vikrant Thakur, Deputy Advocate
General.
Sureshwar Thakur, J (oral)
The accused/petitioner herein (for short "the accused') alongwith other accused, is, facing trial before the learned Special Judge II Solan, H.P., for, his committing an offence punishable under Section 20, of, the Narcotic Drugs and Psychotropic Substances Act, 1985. Upon the accused preferring an application under Section 439 Cr.P.C, he was granted bail, by the 1 Whether reporters of the local papers may be allowed to see the judgment?
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learned trial Judge. The prosecution has led into the witness box, all .
witnesses', except one. At the stage, when the last prosecution witness was to be led into the witness box, the accused/petitioner herein, by preferring an application, cast, under Section 205 Cr.P.C, provisions whereof stand extracted hereinafter, sought his exemption from personal appearance. The ground for the apposite exemption, stands, comprised in the factum of his being bed ridden, hence, being disabled to record his appearance before the learned Court concerned. However, the learned trial Court declined the averred relief, and, also proceeded, to, draw proceedings, against, the accused/petitioner herein, under Section 446 Cr.P.C, besides, also ordered for issuance of NBWs, for ensuring the presence, of, the absentee accused/petitioner herein, before it, on 10.5.2018.
Section 205 in The Code Of Criminal Procedure, 1973
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.
2. On 4.4.2018, the last prosecution witness, was available for his deposition being recorded, and, after declining of ::: Downloaded on - 26/05/2018 23:00:36 :::HCHP ...3...
relief vis-a-vis, the, petitioner upon his application, cast, under .
Section 205 Cr.P.C, the learned trial Court concerned rather discharged PW Durga Dutt Sharma. Even if the learned trial Court, was not, satisfied with the ground, as, meted in the application aforesaid, wherein, the petitioner, sought, his exemption from personal appearance, on 4.4.2018, yet, it was grossly improper for the learned trial Court, to, thereafter proceed to initiate proceedings under Section 446 Cr.P.C, and, also, to, order for issuance, upon him, of NBWs returnable, for 10.5.2018. The reason for making the aforesaid conclusion arises, from (a) with the accused being represented by counsel, and, his prior to, the pronouncement of the order of 4.4.208 rather consistently recording his appearance before, the trial Court concerned (b) AND the proceedings under Section 313 Cr.P.C yet remaining to be drawn, in proceedings whereof, the appearance of the accused before the trial Court concerned, was rather imperative, also, obviously when the personal appearance, of, the accused before the trial Court concerned was peremptory , only, at the stage of pronouncement of a verdict of conviction upon him and conseqeunt imposition , of, ::: Downloaded on - 26/05/2018 23:00:36 :::HCHP ...4...
sentence upon him. (c) reiteredatedly, when, both the aforesaid .
stages remained un-arrived, it appears, that learned trial Court concerned, has committed ,a, gross error, to, despite the accused being represented, by Counsel, hence proceed to draw proceedings, under Section 446 Cr.P.C, especially when prior thereto there was no apt derelictions, on, the part of the accused nor as afore-stated his personal appearance, was necessary nor also with his being duly represented by counsel, it was yet open, for the latter, to, proceed to cross-examine, the, last prosecution witness. Moreso, It was also inappropriate, for the learned trial Court, to, proceed to discharge, the PW aforesaid, his being the last prosecution witness, given want, of, personal appearance of the accused before him, conspicuously when his counsel, was rather enabled to cross examine, the PW aforesaid.
4. Be that as it may, the, drawing of proceedings, under Section 446 Cr.P.C, and, also, ordering qua issuance of NBWs, upon, the absentee accused, as arise, from failure of accused, to, record his personal appearance before the Court concerned, would be both tenable and appropriate, only, when the personal ::: Downloaded on - 26/05/2018 23:00:36 :::HCHP ...5...
appearance, of the accused, before the learned trial Court .
concerned is imperative (i) imperatively, for his facing proceedings, drawn, under Section 313 of Cr.P.C (ii) AND at the time of pronouncement of verdict, stages whereof, remained un- arrived hereat. Consequently, when, he is represented by counsel, who, may proceed, even for want of personal appearance of the accused, hence, cross-examine the PW aforesaid, it is not appropriate for the learned trial Court, to, proceed to discharge the witness concerned or to draw the aforesaid proceedings or to order for issuance, of, NBWs upon him.
5. In view of the above, the present petition is allowed and the impugned order is quashed and set aside. The accused is directed to appear before the learned trial Court concerned, on 26.6.2018, and, in case there is a good reason meted by him, through his counsel, qua exemption, from, personal appearance being afforded to him, and, also in case the relevant apposite exemption, is granted to the accused, thereafter the trial Court concerned may proceed , in case, thereat the last prosecution witness, is present, to record his deposition AND, not to discharge ::: Downloaded on - 26/05/2018 23:00:36 :::HCHP ...6...
him, rather, permit the counsel for the exempted accused, to, cross-
.
examine him. However the learned trial Court, may insist, upon the personal appearance, of, the petitioner/accused, upon, drawing of proceedings under Section 313 Cr.P.C, and, at the time of its pronouncing verdict.
All pending applications, stand disposed of
accordingly.
22nd May, 2018 ( Sureshwar Thakur ),
(priti) Judge.
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