Patna High Court - Orders
Shailesh Kumar Singh And Anr vs State Of Bihar And Anr on 13 September, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.23024 of 2016
Arising Out of PS. Case No.-29254 Year-2014 Thana- PATNA COMPLAINT CASE District-
Patna
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Shailesh Kumar Singh and Anr
... ... Petitioner/s
Versus
The State Of Bihar and Anr
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Kumar Ravish
For the State : Mr.Rabindra Kumar- APP
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 13-09-20231. Heard learned counsel for the petitioners and learned APP for the State.
2. The present quashing application has been filed seeking quashing of the order dated 25.04.2016 passed in Complaint Case No.29254(C) of 2014 by Ms. Seema Kumari, the learned Judicial Magistrate, First Class, Patna, whereby the application dated 07.04.2016 filed on behalf of the petitioners seeking exemption from personal appearance under Section 205 of the Cr.P.C. has been rejected. It is next submitted that the complainant filed a Complaint Case objecting to a newspaper publication published on 07.10.2014 in Hindi Hindustan newspaper to the effect that Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 2/7 the complainant took compensation amount on account of death of one Renu Devi, who is alleged to have died in an incident of stampede on 03.10.2014. Further, the complainant was aggrieved by the fact that the petitioners, who are associated with Hindi Hindustan Newspaper, did not take care in publishing the news item, which aggrieved her. It is next submitted that the learned trial Court by order dated 19.05.2015 took cognizance of the offence under Section 500 of the I.P.C. Thereafter, on 07.04.2016, an application under Section 205 of the Cr.P.C. seeking exemption from personal appearance was filed by the petitioners on the ground that they are employees of M/s Hindustan Media Venture Limited, a company engaged in the business of Printing, Publication and Distribution of the Hindustan Newspaper, Patna Edition, as Sub Editor. It was further pleaded on behalf of petitioner no.1 that he is looking after the news pertaining to health and medicine, which is one of the most important public issue and has also unveiled various scam related to medicine by publication of news article captioned as "Bihar Me Dawa Ghotala", Bihar Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 3/7 Me Sat Sao Fisadi Mahangi Bik Rahi Hai Cancer Ki Dawa"
etc. Further, that he has very busy schedule and as he is associated with the Media. Further, petitioner no.2 sought exemption on the ground that he has to supervise and guide all the Editorial Members, hence, his continuous presence is deeply required for smooth publication of news of public importance.
3. The learned counsel for the petitioners submits that the exemption application under Section 205 of the Cr.P.C. came to be rejected by the learned trial Court.
4. The learned counsel for the petitioners submits that an essential principle of criminal law is that the trial of an offence should take place in the presence of the accused and thus, places reliance on Section 273 Cr.P.C. which provides that all evidence taken in the course of trial shall be taken in presence of the accused.
5. It is next submitted but then, Cr.P.C. has provision allowing Courts the discretion, in certain circumstances, to exempt an accused from personal appearance. However, exemption from personal appearance Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 4/7 cannot be claimed as a matter of right by the accused, as the same is subject to the discretion of the Court.
6. It is next submitted that personal attendance of the accused can be dispensed with either under Section 205 of the Cr.P.C. or Section 317 Cr.P.C., while Section 205 Cr.P.C. gives discretion to the Court to exempt an accused from personal appearance right from the stage of the commencement of the proceeding. Section 317 Cr.P.C. covers the stage after commencement of the inquiry or trial. It is next submitted that the accused need not appear personally to seek exemption as Section 205 Cr.P.C. incorporates that even at the stage of issuing summon, the Magistrate may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear through his pleader. This discretion can be exercised by the Magistrate even in absence of any prayer by the accused for exemption from personal appearance.
7. The learned counsel further submits that power to exempt an accused from personal appearance is exercised considering the circumstances of the case, condition of the Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 5/7 accused and the necessity of personal appearance, the exemption depends solely on the facts and circumstances of the case. Further, personal appearance is the rule in criminal cases of serious nature, involving moral turpitude, while if the offence is punishable with fine only and involves no moral turpitude, exemption of personal appearance is the rule Sushila Devi vs. Sharda Devi reported in 1961(1) CRI.L.J. 819 while dealing with an application for grant of exemption from personal appearance, the Court must generally allow the exemption where insistence on personal appearance in the case of the accused would cause serious difficulty and inconvenience and the comparative advantage would not over-weigh the non-presence of the accused M/S. Bhaskar Industries Ltd. Vs. M/S. Bhiwani Denim & Apparels Ltd. reported in (2001) 7 SCC 401.
8. It is next submitted that the purpose behind granting exemption to an accused from personal appearance is that the proceeding in the case against the accused is taken expeditiously and the hearing be not adjourned only for absence of the accused.
Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 6/7
9. It is further submitted that the Court should exercise discretion liberally in all trivial and technical cases where the accused are women, old and sick, workers in factories, daily wage earners, busy business people and industrialists. It is submitted that the Hon'ble Supreme Court in Puneet Dalmia Vs. Central Bureau of Investigation reported in (2020) 12 SCC 695, exempted the accused from personal appearance taking into consideration their weekly travel from Delhi to Hyderabad to attend the trial, which was causing hardship in meeting their local business commitment, as the case was fixed on every Friday.
10. It is further submitted that factors which are considered by Courts for grant of exemption is:- nature of allegation, conduct of accused, inconvenience in personal appearance Hiremagalur Parthsarthy Shamalah v State of Bihar reported in 2010 CRI.L.J. 2375, prejudice to the complainant and distance at which the accused resides or carries on business.
11. It is next submitted that the Court must see that whenever personal appearance is insisted, there is Patna High Court CR. MISC. No.23024 of 2016(2) dt.13-09-2023 7/7 some harassment to the accused, hence, it is to be considered that the harassment is not out of proportion to the seriousness of the allegation or severity of the possible punishment on conviction.
12. Issue notice to the opposite party no.2 by both modes i.e. speed post as well as ordinary post with A/D, for which necessary requisites etc. must be filed on or before 18.09.2023, failing which the present quashing application shall stand rejected without further reference to the Bench.
13. Put up this case on 06.11.2023.
14. In the meantime, the order dated 25.04.2016 in Complaint Case No.29254(C) of 2014 passed by Ms. Seema Kumari, the learned Judicial Magistrate, First Class, Patna, whereby application on behalf of the petitioners seeking exemption from personal appearance under Section 205 of the Cr.P.C. has been rejected, shall remain stayed.
(Satyavrat Verma, J) vikash/-
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