Chattisgarh High Court
Jagdish Kumar Dhongara And Ors. vs State Of Chhattisgarh on 24 February, 2003
Equivalent citations: 2003(2)MPHT25(CG)
Author: L.C. Bhadoo
Bench: L.C. Bhadoo
ORDER L.C. Bhadoo, J.
1. The accused/applicants have preferred this criminal revision under Section 397 read with Section 401 of the Criminal Procedure Code, being aggrieved by the order dated 22nd January, 2003, passed by the learned Special Judge, Durg, by which the learned Special Judge has not accepted the application under Section 317 of Cr.PC dispensing with the presence of the accused/applicants and summoned them through warrant.
2. The relevant facts, in brief, for the disposal of this criminal revision are that the applicants are facing a criminal case punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120B of the IPC. The matter was fixed for evidence on 21-1-2003 and 22-1-2003. On that date as per the petition, the petitioner were not able to appear before the Court and presented an application under Section 317 of the Cr.PC. The same was rejected by the learned Trial Court and ordered for issuance of the warrant of arrest.
3. I have heard the learned Counsel for the accused/applicants and gone through the relevant order.
4. The learned Counsel for the accused/applicants argued that in the facts and circumstances, the order of the learned Special Judge is unjust, unwarranted and bad in law. The accused/applicants are residing 500-600 kms away from the place of Trial Court; therefore, it is not possible for them to attend the Court on each and every date. In the given circumstances their application should have been allowed.
5. I have perused the orders dated 21-1-2003 and 22-1-2003 passed by the learned Special Judge. On 21st January, 2003 the learned Special Judge accepted the application of the accused persons under Section 317 of the Cr.PC and on that date their personal attendance was dispensed with. However, on 22-1-2003 when the application on behalf of the Jagdish Kumar Dhongara, Pradeep Bansal, Ashok Kundnani, Jaipal Das was presented and in that application it was written that on account of their business, they were unable to attend the Court and on that date the statement of witness Vivek Pardhi was to be recorded, as the original documents were with the applicant No. 3 herein Ashok Kundnani and those documents Ashok Kundnani took on Supurdginama. Since those original documents was not available on that date, neither the Counsel for the accused was ready to admit the copy of those documents nor the original documents were produced by the accused Ashok Kundnani. Under the circumstances, the statement of Vivek Pardhi could not not be recorded and reason for dispensing with their attendance was shown as they were busy in the business. Since the trial could not be proceeded on account of the absence of Ashok Kundnani, it was but natural for the Trial Court to pass an appropriate order in the circumstances. On the one hand accused persons are seeking favour of the Court for dispensing with their personal attendance, on the other hand on account of their sheer non-cooperation the proceedings of the matter is not progressing, therefore, learned Trial Court has rejected their application and the learned Trial Court has further observed that at time of the recording of the evidence, the presence of the accused persons is essential, therefore, the Trial Court rejected the application and summoned them through warrant, therefore the accused persons cannot seek discretionary favour when they themselves are responsible for not allowing the Court to proceed with the trial. Moreover the Trial Court has observed that for recording of the evidence their presence is essential, therefore, it cannot be said by any stretch of imagination that the order of the learned Trial Court is unjust and unreasonable. As per Section 317 of the Cr.PC :--
"If the Judge is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of Justice, or that the accused persistently disturbs the proceedings in the Court, the Judge may, if the accused is represented by an Advocate dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of proceedings, direct the personal attendance of such accused."
Therefore, as per the language of this Section, it is the satisfaction of the concerned Judge that he has to satisfy himself whether in the given facts and circumstances the personal attendance of the accused is not necessary then he can dispense with the presence of the accused. But here in this order it is manifestly clear that the Judge has recorded that during recording of the evidence their presence is essential and more over on account of the behaviour of the accused Ashok Kundnani and his Counsel the proceedings is not being progressed, therefore, these accused persons are not entitled to seek discretionary favour of the Court, therefore, in the circumstances, the order of the Court is correct. There is no legal infirmity in the order. I find no force in the revision. The same is liable to be rejected and accordingly it is rejected.
However, before parting with the matter, I would like to observe that it is expected from the Court that while exercising discretionary power, the Judges should exercise the discretionary power in a most judicious, reasonable manner. With this observation, I expect that the learned Judge will exercise the power judiciously and if in the absence of the accused persons, looking to their difficulties, trial can be proceeded and the Counsel for the accused are ready to co-operate, they do not raise any objection, if any, and they request that proceedings can take place in their absence, then the Trial Court should always try to accommodate the accused persons keeping in mind the provisions contained in Sections 273 and 317 of the Criminal Procedure Code.
With these observations, the criminal revision is dismissed.