2017 (8) TMI 1691 - HC - Indian Laws

Court quashes orders, remands for fresh decision. Successful challenge to rejection under section 205 Cr.P.C.

The court quashed the orders dated 6.9.2016 and 3.10.2016, remanding the matter back to the lower court for a fresh decision. The petitioner's challenge ... Criminal conspiracy - fund was allotted in the National Rural Health Mission ( NRHM) and was financed by the Government of India. It is alleged that more amount was spent than the allocated budget - medicines and equipments have been purchased at exorbitant rate and in excess without ascertaining the requirement by procuring false documents - sections 120B, 420, 467, 468 and 471 of the Indian Penal Code and Section 13(i)(c)13(i) (d) read with Section 13 (2) of the Prevention of Corruption Act. HELD THAT:- The grounds taken by the petitioner in his application under section 205 Cr.P.C. seems to be contradictory since on the one hand he claims to be travelling widely and on the other hand he seems to be a person suffering from large number of ailments. It is true that criminal proceedings were quashed by this Court on 5.4.2013 but the position was restored when the Hon’ble Supreme Court had set aside the order passed by this Court on 29.9.2015. For the period 5.4.2013 to 29.9.2015, it cannot be said that the petitioner had a hand in delaying the case or for not appearing as during that period there was no criminal case in existence so far as petitioner is concerned. Principles governing an application under section 205 Cr.P.C. have not been appreciated by the learned court below and the discretion which has to be judiciously exercised also does not find place in the impugned order dated 6.9.2016. The petitioner apart from being a busy executive has also taken the ground of serious ailments but the learned court below has merely recorded the submissions of the petitioner without giving any finding with respect to the same which would be necessary to show that the learned court below has exercised its jurisdiction in a judicious, legal and proper manner. The matter is remanded back to the learned court below to pass a fresh order in accordance with law after hearing the respective parties - Application allowed. Issues Involved:1. Challenge to the rejection of the application under section 205 Cr.P.C.2. Issuance of a non-bailable warrant due to the petitioner's absence.Detailed Analysis:1. Challenge to the Rejection of the Application under Section 205 Cr.P.C.:The petitioner challenged the order dated 6.9.2016, which rejected his application under section 205 Cr.P.C. for exemption from personal appearance. The petitioner argued that he is the Executive Director of M/s Microgen Hygiene Pvt. Ltd. and suffers from several serious ailments, including Hypertension, Cerebral Palsy, and Diabetes, which should have been considered by the court. The petitioner also highlighted that there was no delay attributable to him between 5.4.2013 and 20.9.2015 as the criminal proceedings were quashed during this period and only revived later by the Supreme Court.The court noted that the trial judge failed to appreciate the principles governing an application under section 205 Cr.P.C. and did not judiciously exercise discretion. The court emphasized that the petitioner’s frequent travel as an executive and his health conditions were not adequately considered. The court referenced the judgment in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., which allows for the dispensation of personal attendance if it inflicts enormous suffering or tribulations on the accused, and the comparative advantage would be less. The court concluded that the trial judge did not properly evaluate these aspects and quashed the order dated 6.9.2016, remanding the matter back to the lower court for a fresh decision.2. Issuance of a Non-Bailable Warrant Due to the Petitioner's Absence:The petitioner also challenged the order dated 3.10.2016, which issued a non-bailable warrant for his arrest due to his absence. The court observed that this order was a direct consequence of the rejection of the application under section 205 Cr.P.C. Since the rejection of the application was set aside, the subsequent order issuing the non-bailable warrant was also quashed. The court noted that the prayer for adjournment was rejected solely because the application under section 205 Cr.P.C. had been denied.Conclusion:The court quashed and set aside both the orders dated 6.9.2016 and 3.10.2016. The matter was remanded back to the lower court to pass a fresh order in accordance with the law after hearing the respective parties. Both applications were allowed, and the court emphasized the need for a judicious exercise of discretion in considering the petitioner's application under section 205 Cr.P.C.