Patna High Court - Orders
Sheela Kumar & Ors vs State Of Bihar Thru.Vigilance on 20 March, 2009
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.1539 of 2008
1.Sheela Kumar wife of Arvind Prasad, posted at the office of Dy.Labour Commissioner,
Purnia
2.Mitali Chokravorty, wife of Shri Dewashish Chokravorty, near Shikariya More, P.S.
Rampur, District Gaya
3.Dinesh Kumar son of Shri Hari Das, Vill- Dalisaman Chak, P.O.Bhatgaun, Dist.Patna
4.Vijay Kumar son of Sri Ram Prawesh Prasad, Vill & P.O. Lala Bhadsara, P.S. Dulhin
Bazar, District Patna
5.Binod Kumar son of Rambriksh Roy, Vill.Parihar, Post Parihar, Distt.Siamarhi.
6.Vimal Kumar son of Late Harish Chandra Prasad, Collectorate-Bettiah
7.Mohan Kumar Sinha son of Raghav Prasad, Vill. Yadavpur Nanhkar, Post Karmawan,
P.S. Dhaka, District East Champaran.
8.Md.Noor Alam, son of late Md.Shahid, Vill. Shital Bari Semrahni, P.O.Serhawa, District
West Champaran.
9.Kalanand Singh son of late Ram Kishun Singh, West Jhirwa, P.S. Simraha, District Araria
10.Surya Narayan Singh son of Ramji Prasad Singh, Vill & P.O. Darura, P.S. Noor Sarai,
District Nalanda
11.Prem Shankar Yadav son of Late Jai Yadav, Vill & Post-Khawaspur Kachahari Ke Tola,
P.S. Krishna Garh, Distt. Bhojpur.
12.Santosh Kumar Nandkuliyar son of Sri Nand Kumar Nandkuliyar, 34, R.S. Mishra Path,
Near Triveni Apartment, East Boring Canal Road, Patna-1.
13.Umesh Ranjan Dev son of Rooplal Rawidas, Vill.Kharuara, P.O. Chero, P.S. Harnauth,
District Nalanda
14.Binod Prasad Karan son of Late Rajendar Pd.Karn, resident of Moh- Shastrinagar, Opp.
Jail Press, P.S. Rampur District Gaya.
15.Tapeshwar Singh son of Raghu Nandan Singh, Vill. Dasarath Bigha, P.S. Raliganj, Distt.
Aurangabad.
16.Ram Chandra Mandal, son of late Bhola Mandal, Vill. Shankar Rohar, P.S. Baheri, Distt.
Darbhanga
17.Ajay Kumar son of Sri Radhe Choudhary, Moha.Baignabad, P.O.Biharsharif, District
Nalanda
18.Yudunath Singh son of Gorakh Singh, At-Baily Road, P.S. Danapur, Patna
19.Shayam Narayan Singh son of Ram Sagar Singh, Vill. Gurua, P.S. Gurua, Distt.Gaya
20.Vijay Kumar son of late Ramsewak Singh, Vill. Maksudpuri, P.S. Fataua, Patna.
21.Awadhesh Kumar Singh son of Late Khedan Singh, At-Aslempur, P.O.Chouri,
P.S.Daudnagar, Distt.Aurangabad.
22.Thakur Ramshish Prasad, son of Shri Raghvir Prasad, Vill & P.O. Nadual,P.S. Masaurhi,
District Patna
23.Satrughan Ram son of Shri Ram Sharestha Ram, Vill. Khopi, Block Runi Saidpur, Distt.
Sitamarhi.
24.Shyam Chandra Bhagat, son of late Sargijit Bhagat, Vill-Rohua, P.O. Block Sonbarsa,
Distt. Sitamarhi.
25.Shri Niwas Singh son of Raghu Nath Singh, Vill. Majhghat, Distt. Gopalganj.
26.Deepak Sah son of Late Tufani Sah, Vill- Mejarganj, Distt. Sitamarhi.
27.Rajeshwar Kumar Sharma, son of Prem Chand Pd. At-Chaili Tand, P.S. Gulzar Bagh,
Distt. Patna
28.Subhas Chandra Choudhary son of Sri Jamadar Choudhary, Vill.Bargachhia, P.O. & P.S.
Uchkagaon, Distt. Gopalganj.
29.Sanjay Kumar Sinha son of Late Harihar Pd.Sinha, Vill.Butijalgar,P.S. & Distt. Ranchi
(Jharkhand)
30.Ranjeet Kumar Sinha son of Late Harihar Pd.Sinha, Vill.Butijalagar, P.S. & Distt.
Ranchi(Jharkhand)
31.Safdar Imam son of late Md.Hasibuddin, Vill. Pakribrawan, Distt.Nawada.
32.Md.Adibuddin son of late Md.Inamul Haque, Vill. Kaitha, P.O. Dhamaol, Distt. Jamui.
33.Shiv Kumar Prasad, son of Baleshwar Mahto, Vill. Rajakuan, P.O.
Biharsharif, Distt. Nalanda
2
34.Shyam Nandan Singh son of Shri Rameshwar Singh, Vill. Gawashpur, P.S.
Harpura, Distt. Aurangabad.
...Petitioners
Versus
State Of Bihar Through Vigilance ..Opposite party
-----------
For the Petitioners : Md. Khurshid Alam, Advocate
For the Vigilance : Mr. Rakesh Kumar, Advocate
Order
5 20-03-2009Heard Sri Khurshid Alam, learned counsel for the petitioners and Sri Rakesh Kumar, leaned counsel appearing for the Vigilance Department.
This revision application is directed against the order dated 12.12.2008, passed by leaned Special Judge, Vigilance, Patna, in Special Case No. 30 of 2005, whereby he has rejected the petition of the petitioners under section 205 of the Cr.P.C. .
Petitioners are facing prosecution under sections 420,467,468,471,477A, 201/120B I.P.C. and sections 13(2) read with section (1)(d) of the P.C.Act.
The prosecution case in short is that a limited competitive examination of Government employees for appointment/promotion to the post of Bihar Administrative service, Class II was conducted by the Bihar State Public Service Commission (BPSC). The examination has been termed as First limited competitive examination. Only government employees in Class III who had put in a given number of years in service were eligible to appear in this examination. It is alleged that a large number of candidates got themselves declared successful by adopting unfair and dubious means with tacit connivance of the officials of the Commission and others. In para 10 of the counter affidavit gross manipulations and embezzlements including breaking locks of strong room of Commission and erosion in answer books have been alleged by the prosecution. A copy of the FIR has been annexed as annexure 1 to the writ petition.
Petitioners submit that they are not named in the FIR. They vehemently deny the allegations leveled against them in 3 prosecution case. They controvert allegation of connivance with the Chairman and staff of the Commissions. They further contend that even if allegations are taken at their face value, they could be charged maximum under the Examination Act. They allege that Vigilance Investigation Bureau without any sufficient materials got issued warrant of arrest against them on defective requisitions even though investigation was pending. Petitioner filed Cr.W.J.C. No. 380 of 2006 in this court. This court after hearing the parties stayed warrant of arrest against them till filing of the charge sheet. The Vigilance after investigation filed nine charge sheets against total number of 109 accused persons including 97 successful candidates inclusive of petitioners.
Consequent to filing of charge sheets, the learned Special Judge, Vigilance on 2.1.2008 took cognizance of the offence and summoned the petitioners to face trial, vide order dated 15.1.2008.
The petitioners as such filed a petition on 7.2.2008 under section 205 of the Cr.P.C. before the learned Special judge for dispensing their personal attendance and to allow them to appear through their lawyers. The learned Special judge by his order dated 2.12.2008 rejected the application of petitioners under section 205 Cr.P.C. The petitioners being aggrieved by the aforesaid order have filed the instant criminal revision application.
The petitioners submits that section 205 Cr.P.C. provides that whenever a Magistrate issues summons and if he is satisfied, he may dispense with the personal attendance of an accused and permit him to appear by his pleader. He submits that as per section 204(1)(b) even in a warrant case, a Magistrate taking cognizance of an offence, if he thinks fit may instead of issuing a warrant can issue summon for his appearance. Further more, as per section 204(1) (a) a Magistrate shall necessarily issue summon in a Summons case.
Elaborating his points he submits that Chapter VI of 4 Cr.P.C. deals with processes to compel appearance. Sections 61 to 69 deals with issuance of summon whereas sections 70 to 81 deals with issuance of warrant of arrest. In case where summons is issued to an accused person then on his so appearance he may be allowed to let go even without taking any surety. In support of his contention he relied upon Form no.1 appended to second schedule. The Form also allows appearance through Pleader. However, Form no.2 of second schedule deals with warrant of arrest and direction to arrest an accused for purpose of producing before the court which may release him on furnishing of due surety. He submits that Form No.1 and Form no.2 appended to 2nd Schedule is in context of section 204(1)(a) and section 204(1)(b) of Cr.P.C.
He next contended that even in cases where summon is issued at the first instance and thereafter warrant, the application under section 205 Cr.P.C. cannot be rejected on the ground that subsequently warrant of arrest has been issued. In support of his contention he has relied upon decisions in the case of Manish Gai Vs State of Bihar, 2007(1) PLJR 822, and in the case of Ram Harsh Das Vs State of Bihar, 1998(1) PLJR 502.
Coming back to the instant case, learned counsel submits that summon was issued at the first instance under section 204 Cr.P.C., and as such the learned Special Judge Vigilance erred in rejecting the application of the petitioner under section 205 Cr.P.C. He submits that the petitioners are not named in the F.I.R. and there is no allegation of bribery or tampering with evidence in the entire case diary. Further more there has been gross violation of section 100 Cr.P.C. Moreover charge sheet has been submitted and cognizance has been taken against them under the Bihar Examination Conduct Act which would not fall in category of serious offences. Besides this, the petitioners are Government employees and it would cause undue 5 hardship to appear in the court personally on dates given in the proceeding. The public work would suffer on this account.
Mr. Rakesh Kumar, learned counsel for the Vigilance raised objection that the instant revision application is not maintainable as the order rejecting application under section 205(1) Cr.P.C. is an interlocutory order within the meaning of section 397(2) Cr.P.C.
According to him in view of nature of allegations and settled norms, the petitioners are not entitled to exemption under section 205 Cr.P.C. He submits that under section 204(1)(a) summons has to be issued necessarily in a summons case and as per section 204(1)(b) a warrant in warrant case except when the Magistrate otherwise thinks it fit to order issuance of summons. Further more in summons cases, an application under section 205 cannot be allowed as a matter of course. In support of his contention, learned counsel for Vigilance relied upon a decision in the case of Bhaskar Industries Limited Vs Bhiwani Denim and Apparels Limited, (2001)7 SCC 409, wherein it was observed that such discretion should be exercised only in rare instances where due to 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 personal attendance of the accused would be in interest of justice.
He submits that issuance of summons under section 204 Cr.P.C. consequent to submission of charge sheet was an irregularity as warrant has been issued against the petitioners during the investigation. According to him this would not be a case of issuance of summons at the first instance. Further more generally in warrant cases summons are issued if a person is already on anticipatory bail. He submits that section 205 Cr.P.C. is an exception to the general provision and section 273 also warrants that evidence should be generally taken in presence of the accused. He controverts the 6 submission that cognizance of offence has been taken not only under the Bihar Examination Conduct Act, but also under the Prevention of Corruption Act as well as under section 120B of the Penal Code. He submits that some of the government employees similarly situated as the petitioners have been allowed anticipatory bail by different benches of this court, and some of the petitioners have also filed anticipatory bail application.
As the issue of maintainability has been raised by learned counsel for the Vigilance, I will consider this matter at the outset before I take up the other issues. According to counsel for the Vigilance order rejecting application under section 205 of the Code is an interlocutory order and the same is not revisable and as such the revision application filed by the petitioners is not maintainable in view of bar contained in section 397(2) Cr.P.C. He further submits that order is revisable only if objection regarding such order is upheld by the court would result in culminating the proceeding before the Magistrate. In support of his contention, learned counsel relied upon decision in the case of Bhaskar Industries Ltd Vs Bhiwani Denim & Apparels Ltd & others, (2001)7 SCC 401.
In my view the plea of learned counsel for the Vigilance is fit to be rejected. The reliance of counsel for the Vigilance on the decision of Bhaskar Industries Ltd (supra) is also misplaced. In order to appreciate the objection it would be relevant to deal with section 397(1) and (2) Cr.P.C. Section 397(1) confers power of revision on High Court and Sessions Judge. Section 397(2) states that power of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding.
The Apex Court in the aforesaid case of Bhaskar Industries Ltd (Supra) observed that whether an order is interlocutory or not cannot be decided by merely looking at the order or merely 7 because it was passed at interlocutory stage. In paragraph 10 the learned Judges referred to test laid by Apex Court in the case of K.K.Patel Vs State of Gujarat, (2000)6 SCC 195 and quoted with approval paragraph 11 of the said decision which is as follows:
"The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397(2) of the Code".
The Apex Court in the case of Madhu Limaye Vs State of Maharashtra, 1978 SC 47 observed that an interlocutory order ought not to be understood as converse of final order and vice versa, otherwise it will render nugatory, the exercise of power of revision. The Apex Court held that the term interlocutory order ought to be construed in restrictive sense. It was further observed that if restrictive construction is not inferred, then under such strict interpretation only those orders, which are passed on final determination, would be revisable which is not the intent of the legislature.
The Apex Court in the case of Rajendra Kumar Sita Ram Pandey Vs Uttam, (1999)3 S.C.C. 134 : 1999(2) P.L.J.R. 5(SC) observed that section 397(2) has been used in a restrictive sense which denotes order of purely interim or temporary nature, which do not touch important right or liability of the parties. In other word, an order which decides important rights and liabilities of the parties, though it may not dispose of proceeding finally would not be termed as interlocutory order.
The Full Bench of Rajasthan High Court in the case of Jai Ram Singh Vs State of Rajasthan, 1999 Cr.L.J.810 in the case of Akram Vs State of Madhya Pradesh, 2000 Cr.L.J. 106 reiterated the aforesaid view.
A learned Single Judge in the case of Sumit Bose Vs State 8 of Bihar, 2002(3) P.L.J.R. 208 relying upon the judgment of Rajendra Kumar Sita Ram Pandey (Supra) observed as follows:
"On the touch stone of aforesaid principles decided by the Apex Court and order under section 205 of the Code has to be held to be an intermediate or quasi final order and not purely interlocutory in nature. This inference appears to be unavoidable after going through the provisions of the Code which confer certain rights and liabilities upon the accused which are consequent upon the outcome of a prayer under section 205 of the Code".
Though the accused may not have a vested right to the benefit of the order under section 205 of the Code, however, he may be entitled to consideration of the same. An order passed one way or the other, rejecting or allowing the application thus touch upon important rights or liabilities of the parties to dispense with his personal appearance and to permit the person concerned to appear through counsel.
Thus a right of an accused to be represented through his counsel in his absence, is dependent upon nature of order which may be passed under section 205 of the Code and as such it cannot be said to be an interlocutory order so as to attract the bar of section 397(2) of the Code.
Thus, I hold that this revision application is maintainable. Now once having decided that the instant revision is maintainable, I proceed to examine the other issues of the case, which are as follows:
(i) Whether an accused can claim exemption under section 205 Cr.P.C. pursuant to issuance of summons in a warrant case under section 204(1)(b) if warrant of arrest has been issued against him in course of investigation purportedly under section 73 Cr.P.C?
(b) Whether in the facts and circumstances of the case the 9 petitioners are entitled to exemption under section 205 Cr.P.C.?
(c) Whether the case of the petitioners would come under the category of cases in which exemption under section 205 Cr.P.C. can be justified?
The adjudication of the issues necessarily involves the consideration and determination of scope of sections 73, 204 and 205 Cr.P.C. The provisions are quoted herein below for easy reference:
"Section 73. Warrant may be directed to any person-(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest."
"Section 204. Issue of process- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction".
"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".
The scope and object of sections 204 and 205 Cr.P.C. was subject of consideration before a Division Bench of this court way 10 back in early 1920s in the case of Abdul Hamid Vs King Emperor, reported in 1924 Patna 40. In recent years the aforesaid provisions have also been subject mater of consideration of a Division Bench of this court in the case of Ram Harsh Das Vs State of Biahr, 1998(1) P.L.J.R. 504. Relying upon the earlier decision in the case of Abdul Hamid Vs. King Emperor, reported in 1924 Patna 40, the latter Division Bench in case of Ram Harsh Das (supra) held that if a Magistrate taking cognizance of offence finds sufficient ground for proceeding, he would necessarily issue summons in summons cases, and warrant in warrant case save and except if Magistrate otherwise finds it fit to issue summons. It necessarily follows from conjoint reading of sections 204 and 205 Cr.P.C., that the issuance of warrant in a warrant case is a rule and issuance of summons is an exception. Further more, section 205 empowers a Magistrate to dispense with personal attendance of an accused when summons is issued. Section 205(1) Cr.P.C. does not refer either to summons case or warrant case rather it speaks that in case summons is issued, the Magistrate if he sees reason to do so, may dispense with personal attendance. He can exercise this judicial discretion at any stage of the proceeding before the termination of the trial as provided under section 205(2) Cr.P.C.
Section 205 Cr.P.C. somewhat corresponds to section 540 A of Old Cr.P.C. which was inserted in the Code in the year 1923 by Amendment Act 18 of 1923. Even prior to such amendment the court exercised the power of exemption in appropriate cases under sections 353 of the Old Code. The provision under section 205 Cr.P.C. is a benevolent measure with avowed object to protect an accused from harassment and inconvenience. Hence, the legislature has conferred the discretionary power of dispensing with personal appearance/attendance of the accused and permitting him to appear through his Pleader. The discretion is not imperial but judicious and reasonable. The satisfaction has to be judicious and not arbitrary or 11 imbued with instinctual reaction. Besides section 205 Cr.P.C., the power of exemption can be exercised under sections 273, 317 and 482 Cr.P.C.
One of the objects of section is to provide relief to a person accused in petty cases where he can plead guilty without appearing before a Magistrate through a Pleader or even by a post. In the case of Madhu Limaye (Supra) the Apex Court observed that even in summon cases where inadvertently warrant is issued, the mistake can be rectified and power under section 205 can be exercised.
The principal regarding discretion to issue summons or warrant occurring in the Halsbury's Laws of England 4 th Edition, Vol II, Para 95 is gainfully quoted herein below:
"If an application is made to a justice of peace to issue a summons or warrant of arrest, he must exercise a judicial discretion in deciding to grant or refuse it. If he declines jurisdiction or refuses to grant a summons for the reasons which is bad in law an order of mandamus may issue to compel him to hear and determine the matter".
Thus issue stand well settled that power under section 205(1) Cr.P.C. can be exercised even in warrant case if summons has been issued. It has never been the intention of the Legislature not to allow exemption under section 205(1) Cr.P.C., if summons has been issued in a warrant case. It would be expedient to quote relevant extract of paragraph 37 of the judgment passed in the case of Ram Harsh Das Vs State of Bihar, 1998(1) PLJR 502, which runs as under:
"37. ............Thus, from a bare reading of both the provisions, it is clear that the Magistrate can exercise a power under section 205 of the Code even in warrant- cases also, provided he has issued summons under section 205(1) of the Code instead of warrant. Legislature never intended that power to dispense with personal appearance cannot be exercised in a warrant case. However, a rider has been put that this power has 12 to be exercised only when the Magistrate on being satisfied that the summons should be issued instead of a warrant, issues summons".
The aforesaid judgment further considered the issue whether in a warrant case, if warrant is issued at first instance in place of summons, whether the Magistrate can grant exemption under section 205 of the Code. This issue too was answered in negative. However, the court observed that even if in a warrant case, warrant is issued at first instance, this court may in appropriate case dispense with personal appearance in exercise of power under section 482 of the Code in the ends of justice. In paragraph 48 of the judgment, this court held as under:
"48. ...........Thus, I am of the considered view that once the Magistrate has issued a warrant at the first instance in a warrant case, the power under section 205 of the Code cannot be exercised. However, I may state that even in such cases, this court may dispense with the personal appearance in exercise of power under section 482 of the Code if a proper case is made out for the ends of justice. ............".
Another connected issue which has engaged the attention of the court is whether power under section 205 of the Code can be exercised by a Magistrate if summons is issued at the first instance followed by warrant. The Code does not disentitle a Court of exercising power under section 205 Cr.P.C. even if warrant is issued subsequently in a case where summons is issued at the first instance.
A bench of this court after elaborately discussing the issue in question in case of Sumit Bose @ Sumit Ranjan & Ors Vs State of Bihar & Others observed that there is no legal bar in exercising power under section 205 of the Code, if an accused is not taken into custody in execution of warrant of arrest, subsequent to the issuance of summons.
Further more this court in the case of Manish Gai Vs State of Bihar, 2007(1) P.L.J.R. 822 has observed in paragraph 5 as 13 follows:
"5. To say the least it appears that the learned SDJM has failed to exercise its jurisdiction which was vested in him under section 205 Cr.P.C. This Court in the case of Ram Harsh Das Vs State of Bihar since reported in 1998(1) PLJR 502 has held that application of Section 205 Cr.P.C. does not end by issuance of warrant of arrest if at the first instance summons were issued. To my kind law has not changed since then. If summons are issued at the first instance and subsequently warrant of arrest is issued even in such a situation the benefit of Section 205 Cr.P.C. is available. The Magistrate was clearly wrong in his notion of law."
In the case of Sm. Prova Debi Vs Mrs. Fernandes, reported in 1962 Calcutta 203(FB), a Full Bench of Calcutta High Court observed that where summons is issued against an accused and subsequently on account of non-appearance the warrant is ordered to be issued but however cancelled before it is actually cancelled, the Magistrate in such a case can exercise his power under section 205 of the Code.
The next issue which arises for consideration whether benefit under section 205 Cr.P.C. is to be granted in summons cases and in all warrant cases where summons has been issued at the first instance.
In my view such indulgence cannot be granted in a blanket manner even in summon cases where summons are necessarily issued and in warrant case where summons have been issued at the first instance. Section 205 of Cr.P.C. mandates that exemption under section 205 of the Code can be granted only if it is reasonable to allow such indulgence. Such discretion has to be exercised in a judicious manner depending upon nature of allegations and the comparative disadvantage it may cause to the accused.
14
It will be difficult to categories the cases as well as the circumstances in which such indulgence can be granted. No hard and fast rule or any definite formulas can be laid down in this respect. However, the courts have consistently held that in petty cases exemption under section 205(1) Cr.P.C. should be readily granted.
The Apex Court in the case of Bhaskar Industries Ltd Vs Bhiwani Denim & Apparels Ltd & others, (2001)7 SCC 401 has observed in paragraph 19 that a Magistrate in an appropriate case can dispense with 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 inflict enormous suffering or tribulations on him, and the comparative advantage of disallowing such petition would be less. The Apex Court in the aforesaid case has further held that such discretion can be allowed in favour of an accused if accused resides or carries on business at far of place of or if the same is in the interest of justice.
Again in the case of Ram Harsh Das(supra) a Division Bench of this court observed that in petty cases the court should be liberal in granting exemption under section 205 of the Code. The court while granting such relief should consider the nature of allegation, conduct of an accused and inconvenience likely to cause to the accused. In paragraph 49 of the judgment this court observed that no categorization of the cases can be made for granting relief under section 205 Cr.P.C. but generally in case of Purdanashin women, old and sick persons, factory workers and labourers, busy business people or public functionaries ought to be liberally granted exemption under section 205(1) Cr.P.C.
However, in paragraph 38 of the aforesaid judgment the Division Bench observed that power under section 205 should not be exercised in favour of accused in serious cases, major offences or offences involving moral turpitude and longer punishment. 15
In the case of Jayant Dang Vs State of Bihar, 2004(4) P.L.J.R. 25, this court observed that the court should be liberal in granting exemption under section 205 of the Code except where allegation is serious and one which involved moral turpitude. The court should generally consider the nature of allegation, conduct of accused, inconvenience likely to be caused to the accused and the comparative advantage to the prosecution. This court observed in the aforesaid case that busy business people should be given benefit of such provisions unless they are facing prosecution under serious offence like murder, rape, misappropriation of money, harassment of women. In the aforesaid case this court also observed that if summons is issued at the first instance and without any service report if bailable warrant has been issued contrary to law, the same would not disentitle the accused benefit of section 205 of the Code in appropriate case. This court in paragraph 6 has held as follows:
"6. Having considered the rival submissions of the Counsel for the parties this Court holds that it is not in dispute from the records that accused no.6 in fact entered appearance at the stage of summons. In so far as accused no.2 is concerned, there was no service report with regard to summons when warrants came to be issued against him on 11.1.2000. Chapter VI of the Code of Criminal Procedure details the procedure of issuance of and service of summons. The stage of warrant as contained in Part B of Chapter VI arises only thereafter. In the absence of any order recording the satisfaction of the Court below with regard to the service of summons according to law, the bailable warrants issued against the petitioner (accused no.2) cannot be sustained. In the circumstances, this Court holds that the issuance of warrant against accused no.2 was not justified at this stage. Reliance may be had upon the judgment of this Court reported in 2000(3) PLJR 251. Warrants thus having been issued contrary to law the proceedings would be deemed to be at the stage of summons and the accused no.2 16 having entered appearance at this stage cannot thus be denied the benefit of consideration for grant of relief under section 205 Cr.P.C. This Court therefore holds that the proceedings in so far as accused no.2 be concerned, rests at the stage of summons".
In the case of Sumit Bose @ Sumit Ranjan Bose & Ors Vs State of Bihar and another, 2002 PLJR 208 this court observed that in a case where accused is facing criminal action not on account of any personal action but on account of their association with the Corporate body or if they are residing at a distant place, application under section 205 of the Code should be liberally allowed.
In the case of Ashish Kumar Lal Vs State of Bihar & another, reported in 2002(3) P.L.J.R.628, this court observed that bonafide business dispute cannot be categorized as serious offence and in appropriate cases rejection of application under section 205 of the Code would not be proper.
In the case of Ravi Singh Vs State of Bihar, reported in 1979 B.B.C.J. 437 it was observed that section 205 Cr.P.C. would come up even those kind of cases where summons ought to have been issued at the first instance but warrant has been issued by mistake. This court further observed that section 205 Cr.P.C. should be liberally extended particularly in all trivial and technical cases where accused persons are ladies, old and sick person, workers in factory, daily wage earners and other labourers and busy business people and industrialists.
In the case of S.V.Muzumdar Vs Gujrat State Fertilizer Co., reported in 2005(4) SCC 173 the Apex Court in paragraph 13 has held as follows:
"13. It has to be borne in mind that while dealing with an application in terms of section 205 of the Code the court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial 17 would be served by requiring the personal attendance of the accused or whether the progress of the trial court is likely to be hampered on account of his absence. We make it clear that if at any stage the trial court comes to the conclusion that the accused persons are trying delay completion of trial it shall be free to refuse the prayer for dispensing with personal attendance".
The findings arrived at, after noticing various decisions and principles is summed up as follows:
(A) Where summon is issued at the first instance, whether it may be in summons case or warrant case, application under section 205 of the Code can be allowed in categories as follows :
i) If accused resides or carries on business at a far off place.
ii) On account of physical reasons
iii) If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less.
iv) Purdanashin women
v) Old and sick persons
vi) Factory workers and labourers
vii) Busy business people or public functionaries.
viii) Corporate employees (B) The aforesaid categories are illustrative and not exhaustive. The nature of allegation and conduct of accused would also be relevant consideration. However, in cases of serious and major offences, like rape, murder, dacoity, Arms Act etc. or offences involving moral turpitude and longer punishment, exemption under section 205 of the Code ought not to be ordinarily granted. In case any time before arrest of a person pursuant to the execution of warrant, if summons is issued at first instance, application under section 205 of the Code would be fully maintainable. Further more in case where summons are to be necessarily issued at the first instance, as it is desirable in summons case in view of section 204(1)(a) and by mistake 18 warrant has been issued, application under section 205 of the Code cannot be disallowed on the ground that warrant has been issued at the first instance.
(C) High Court in exercise of power under section 482 Cr.P.C. can even consider the plea of an accused for dispensing with his personal attendance as provided in section 205(1) Cr.P.C., even in cases warrant has been issued at the first instance in place of summons. In summons cases the court should be more liberal in granting exemption under section 205 of the Code in comparison to warrant cases as the offence in the former cases are less severe and involve lesser punishment (below two years) in comparison to warrant cases defined in section 2(x) and covers offences for which punishment may range from 2 years up to death.
This takes to the final issue which is reproduced for convenience :
Issue: "Whether an accused would be disentitled to consideration of section 205(1) Cr.P.C. in appropriate cases where summons has been issued under section 204 of the Code though a warrant of arrest has been issued at the stage of investigation?
Chapter XVI of the Code deals with commencement of a proceeding before a Magistrate whether it is a complaint case or a police case. Section 204 speaks of issuance of process. Section 204 Cr.P.C. refers to a stage where a Magistrate finds that there is sufficient ground for proceeding against an accused and he issues summons or warrant as the case may be to the accused to face trial.
Thereafter the police report or other documents as enumerated in section 207 and 208 of the Code are complied with to acquaint the accused with the materials that has come against him for purpose of framing of charge or explaining substance of accusation. Section 205 Cr.P.C., provides for dispensing of personal attendance of accused and permitting him to appear by his Pleader where summons is issued, if 19 the Magistrate sees reason to do so. The word "Summons" mentioned in section 205 of the Code obviously refers "summons" used in section 204(1)(a)(b). The conjoint reading of sections 204 and 205 of the Code would make it clear that it does not refer to issuance of summons or warrant prior to commencement of proceeding before Magistrate or a Special Court under Chapter XVI of Code constituted for purpose of trying a case.
As per section 73 Cr.P.C. warrant can be issued for arrest of a convict and proclaimed offence, which is not a situation in the instant case. Section 73 Cr.P.C. provides for issuance of warrant to an accused in a non-bailable case and evading arrest. Such warrant at times is issued even at stage of investigation, if conditions are fulfilled.
Such warrant is not a warrant issued under section 204(1)(b) and thus would not bar consideration of an application of section 205(1) Cr.P.C.
Answer : On the basis of the aforesaid discussions, I am of the view that the warrant issued prior to commencement of proceeding under section 204 Cr.P.C. contained in Chapter XVI of the Code ipso facto in itself would be no legal bar for consideration of an application under section 205(1) Cr.P.C.
In the instant case warrant of arrest was issued by the Special Judge, Vigilance in year 2006, much prior to the commencement of a proceeding under Chapter XVI of the Code. This warrant too was stayed by this court. Cognizance was taken only on 2.1.2008. The Special Judge issued summons under section 204)1)(b) Cr.P.C. to face trial on 15.1.2008. Section 204(1)(b) relates to warrant or summons in a warrant case. The judicial proceeding under section 204 commenced only on 15.1.2008, when the learned Special Judge took cognizance of offence and issued summons to the petitioners to appear and face trial. Further more, the warrant too which was issued prior to the issuance of summons under section 204(1)(b) was stayed by this court till filing of the charge sheet by order dated 19.6.2006, 20 passed in Cr.W.J.C.No.380 of 2006. The warrant issued in the year 2006 at the stage of investigation was on a requisition filed by the police pending investigation and it was not a warrant issued under section 204(1)(b) Cr.P.C. The proceeding under Chapter XVI of the Code commences only after issuance of process under section 204 Cr.P.C., either with aid of summons or warrant as the case may be.
Thus the petition filed under section 205(1) Cr.P.C. by the petitioners was maintainable in the eyes of law and could not be rejected solely on the ground that warrant was issued against the petitioners earlier during the stage of investigation.
This takes us to the next issue, whether in view of the facts of the case and nature of allegation, the learned trial court erred in rejecting the application of the petitioners under section 205 Cr.P.C. It appears from the order of the trial court that it rejected the application of the petitioners under section 205 Cr.P.C. on the ground that the allegations against them were grave and serious.
It would appear from the record that the prosecution has alleged that the petitioners who are government employees adopted unfair and dubious means, to be declared successful in league with officials of the Commission, for being promoted to Class II in the official grade. It also appears that many other similarly situated accused persons have been allowed Anticipatory Bail and they have appeared and filed bail bonds pursuant to the same. The petitioners have expressed apprehension that at times it may not be possible for them to appear in court on each and every date in the case. The Code provides due safeguards for taking care of such situation where an accused is not able to appear in person on each and every date. Section 317 of the Code is one such provision. In appropriate circumstances, an accused can file a petition for being represented by a Pleader and for prayer to dispense with his attendance and to proceed with such enquiry or trial in his absence. Thus, I find that the apprehension of the 21 petitioners is misconceived and the petitioners would not be remediless in case they are not able to appear in person in extreme cases.
In view of the aforesaid circumstances, I hold that the petition filed by the petitioners under section 205(1) Cr.P.C. cannot be rejected solely on the ground that warrants were issued to them prior to the commencement of proceeding under section 204 Cr.P.C. I further hold that the order passed under section 205(1) Cr.P.C. is not an interlocutory order within the meaning of section 397(2) of Cr.P.C. However, taking into consideration totality of circumstances and nature of allegations, I do not find the instant case to be a fit case in which exemption under section 205(1) Cr.P.C. could be allowed.
In the result, the impugned order of learned Special Judge, Vigilance, rejecting the petition for grant of exemption under section 205(1) Cr.P.C. does not suffer from illegality and the same is upheld. The revision application is accordingly dismissed.
Before parting with the record of this case, I must record my deep sense of appreciation for valuable assistance rendered by Shri K.N.Choubey, Sr. Advocate who was called upon by the court to address the general issue in hand, besides Mr.Khurshid Alam, learned counsel for the petitioner and Mr.Rakesh Kumar, learned counsel appearing for the Vigilance.
(Samarendra Pratap Singh,J) KHAN A.F.R.