Patna High Court - Orders
Hiremagalur Parthsarthy Shamalah @ ... vs State Of Bihar & Anr on 30 June, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.138 of 2006
Hiremagalur Parthsarthy Shamalah @ H.P.Shamala @ A.Shyamla
D/O Parthasharthi Shamla, Deputy Commissioner, Navodaya
Vidyalaya Samiti, Regisional Office , 270 , Senapati Rapat Marg,
Pune-16 ( Maharastra). ------------- Petitioner
Versus
1. THE STATE OF BIHAR
2. Pramod Kumar Singh, Son of Late Jitendra Singh, resident of
Mohalla- Gajadharganj, P.S. Buxar, District-Buxar
-------------- Opp.Parties.
-----------
WITH
CR. REV. No.140 of 2006
Kshitish Chandra Das @ K.C.Das Son of Late Gangadhar Das,
Assistant Commissioner, Navodaya Vidyalaya Samiti, Regional
Office,Nongrim Hills, Shillong ------ Petitioner
Versus
1. THE STATE OF BIHAR
2. Pramod Kumar Singh, Son of Late Jitendra Singh, resident of
Mohalla- Gajadharganj, P.S. Buxar, District-Buxar
---------------- Opp.Parties.
-----------
For the petitioners : M/S Y.V.Giri , Sr. Advocate, and
Shailendra Kr.Singh ( in both cases).
For the State : (i) Mr.Jharkhandi Upadhaya, A.P.P.
( Cr.Rev.138 of 2006)
(ii) Mr. R.B.S. Pahepuri, A.P.P.
Cr.Rev.No.140 of 2006)
For Opp.Party no.2: M/S Rajendra Pd. Singh, Sr. Advocate,and
Alok Kumar Singh, Advocate (In both cases)
------------
ORDER
Both these cases were directed to be heard together with
Cr.W.J.C.No.613 of 2007 since the two revision petitions arise out of
the same Complaint Case No.1751(C) of 2005 and the writ petition
arises out of Shri Krishnapuri P.S. Case No.82 of 2005 by one of the
accused of the complaint case, namely, P.S. Kansal in respect of the
same cause of action. . However, the two revisions were heard
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on 22.10.2008, whereas the writ petition was heard separately on
10.12.2008 and in my opinion since the matter involved are not the
same, I am of the opinion that the order in the writ petition is required
to be passed independently and separate from the orders in the
revisions. In the aforesaid circumstances while separate orders shall be
passed in respect of Cr.W.J.C.No.613 of 2007, this order shall govern
the two revisions which have been heard together on 22.10.2008.
The petitioner of Cr.Revision No.138 of 2006 and the
petitioner of Cr.Revision No.140 of 2006, namely, Hiremagalur
Parthsarthy Shamala @ H.P.Shamla @ A Shyamla and Kshitish
Chandra Das @ K.C.Das respectively, both of whom along with
others have been made to figure as accused in the aforesaid complaint
petition , have by the two revisions prayed for the quashing of the
order dated 18.1.2006 passed in the aforesaid complaint case by the
learned Sub Divisional Judicial Magistrate,Patna , whereby their
petition under Section 205 Cr.P.C. has been rejected.
The aforesaid complaint was filed by one Pramod Kumar
Singh, impleaded as Opp.Party no.2 in both the revisions , inter alia
alleging commission of overt acts by the twelve persons, all except
one, being officials of Navodaya Vidyalaya Samiti, posted at various
places, arrayed as accused. The allegation therein is that one Ashraf
Ali, accused no.11, was illegally appointed as T.G.T. ( Sc.) at
Jawahar Navodaya Vidyalaya , Bikram ,Patna by remaining accused
persons in connivance and in conspiracy with each other by means of
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forgery and manufacturing documents and thereby making wrongful
gain for themselves and causing wrongful loss to the government
exchequer and also committing deceit and the appointment letter was
allegedly under the forged signature of the Dy.Director, D.S. Singh. It
is further alleged that the forged letter of appointment of Ashraf Ali
was detected in 1998 by the Assistant Director , R.K.Sharma , who
brought it to the notice of Shamshul Haque , Dy. Directory, at the time
of confirmation of service of appointed teachers who had completed
two years of service, but the Dy.Director did not take any notice of
the matter and issued orders for his confirmation with other teachers.
It is further alleged that the issue of illegal appointment was raised
time and again in the year 2000-2001 with Dr. Hazarika as the Dy.
Director and K.C. Das as Assistant Director when seniority of T.G.T
(Sc.) was under preparation. The matter was referred to the
headquarter at New Delhi , wherefrom orders for terminating the
services of Ashraf Ali after completing necessary formalities were
issued but the Regional Office at Patna sat tight over the same. It is
said that in the meantime, Dr. Hazarika got transferred and his
successor H.P. Shamla took over charge as Dy.Director. It is also said
that in the meanwhile said Ashraf Ali got best teacher's award of
'Guru Ratna' with the blessings of the officials of the Regional Office
and Headquarters at Delhi and the order of termination remained
unattended. It is said that K.C Das, the Assistant Director at the
Regional Office,Patna , in connivance with others managed things and
having obtained the consent of Shyamla recommended the
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regularization of illegal appointee Ashraf Ali. On the aforesaid
premise, the allegation of the complainant is that all the accused
persons including the two revisionists have committed offences under
Sections 409, 420, 468, 471 and 120B I.P.C.
Assailing the impugned order, it has been submitted by the
learned counsel for the revisionists that the two revisionists on receipt
of summons appeared and filed petitions under Section 205 Cr.P.C.
for dispensing with their personal appearance and to be represented
through this counsels. The ground taken by Shyamla for dispensing
with her personal appearance was that she was presently posted at
Pune as Dy. Commissioner, Navodaya Vidyalaya Samiti , Regional
Office and looks after three States of Maharashtra ,Goa and Gujrat
and her nature of work being that of superintendence/inspection , she
has to undertake several tours and visits to the institutions in those
three States and in the circumstances it would not be possible for her
to attend the court on each and every date. The ground taken by K.C.
Das for dispensing with his personal appearance was that he was
presently posted at Shillong as Assistant Commissioner , Navodaya
Vidyalaya Samiti , Regional Office and looks after seven States of
Assam, Manipur, Meghalaya, Sikkim , Arunachal Pradesh , Mizoram
and Tripura and nature of duty being identical to that of Shyamla ,he
was also required to undertake several tours and visits to the
institutions of the seven States and in the circumstances, it was
difficult for him to attend the court on each and every date. Both the
petitioners had given undertaking to be personally present in the court
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as and when so directed by the court. However, their difficulties did
not impress upon the court who appears to have rejected their petitions
on the twin grounds of cognizance having been taken and the offences
being non-bailable.
By way of a supplementary affidavit filed in Cr.Revision
No.138 of 2006 , it was sought to be impressed that co-accused Dr.
Rakesh Kumar Sharma had filed Cr.W.J.C.No.115 of 2006 and by
order dated 20.12.2006 a Bench of this Court quashed the aforesaid
complaint case so far as the petitioner was concerned taking into
account the fact that the allegation so far as the petitioner was
concerned is false and concocted in asmuch as the said petitioner
was never posted at Navodaya Vidyalaya prior to 2001 . The said
order also took into account the fact that two other co-accused,
namely, Parmatama Sharam Kansal and Man Mohan Swaroop
Khanna had also succeeded in similar terms by filing
Cr.W.J.C.No.587 of 2005 and Cr.W.J.C.No.31694 of 2006, disposed
of on 6.12.2005 and 20.11.2006 respectively.
Opp.Party no.2 has appeared to contest the revision
application and though no counter affidavit or show cause has been
filed, oral submissions have been made to justify the impugned order
rejecting the petition under Section 205 Cr.P.C.
The law is now well-settled in respect of petition under
Section 205 Cr.P.C. and though the power is discretionary, the court
has to consider whether any useful purpose would be served by
requiring personal attendance of the accused or whether progress of
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the trial is likely to be hampered on account of their absence . It is also
the well-settled law that where the persons are busy executives who
have to move at various places of the country , such matters when an
undertaking to be present in court is given , should be given
preference.In Jayant Dang Vrs. State of Bihar , reported in 2004 (4)
PLJR 25 , it was held that the power under Section 205 Cr.P.C. is to
be considered in a reasonable manner and no hard and fast rule could
be laid down and at the same time the court should be liberal in
granting exemption from personal appearance except where serious
issues or allegations of moral turpitude are involved . Nature of
allegation, conduct of accused, inconvenience in personal appearance
are the relevant considerations for deciding the question of exemption
of personal appearance and even after issuance of warrant the court
may dispense with personal appearance in exercise of power under
Section 482 Cr.P.C. if a proper case is made out for the ends of
justice.
In the instant case, the revisionists are high officials posted
at Pune and Shillong respectively while trial is to be conducted at
Patna and the inconvenience caused to them by insisting upon their
personal appearance in court on each and every date does not appear
to have been considered in the impugned order rejecting the prayer
for dispensing with personal appearance ,moreso when both of them
have given undertaking to be physically present in court when so
ordered by the court.Although the court has taken the view that
cognizance has been taken and the offences alleged are non-bailable
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those by themselves cannot be reasons for rejecting the prayer under
Section 205 Cr.P.C.
In the facts and circumstances of the case, both the revisions
are allowed and the impugned order rejecting the prayer of the two
revisionists for dispensing with their personal appearance under
Section 205 Cr.P.C. is hereby set aside.
As stated above, separate orders shall be pronounced in the
writ petition.
( Abhijit Sinha, J )
Patna High Court,Patna
Dated : the 30th June,2009
Nawal Kishore Singh/ A.F.R.