2018 (9) TMI 2107 - HC - Indian Laws

High Court Upholds Trial Court Decision on Exemption Request

The High Court upheld the trial court's decision to dismiss the petitioner's request for exemption from personal appearance under Section 205 of the ... Seeking to dispense with his appearance permitting his counsel Sri Bharadwaj Reddy - offence punishable under Section 120-B of I.P.C. read with 420 of I.P.C. and Section 12 of Prevention of Corruption Act - Whether the appearance of the petitioner on all dates of adjournments in C.C.No.12 of 2013 be dispensed with, permitting his authorised advocate Bharadwaj Reddy to appear on his behalf permanently on all the dates of hearing of the case on the ground that he is a Director of various companies and that he is facing financial difficulty besides loss of man hours? HELD THAT:- The present criminal petition is filed under Section 482 of Cr.P.C. In HAMIDA VERSUS RASHID AND ORS. [2007 (4) TMI 768 - SUPREME COURT], the Apex Court held that it is well established principle that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The order passed under Section 205 of Cr.P.C. is purely within the discretion of Magistrate/Judge here, the Principal Special Judge for CBI Cases, Hyderabad. The Principal Special Judge for CBI Cases being the Master of the proceedings in his Court exercised his discretion and declined the request of the petitioner. In Sushila Devi and Jagadguru Sachidanada Shankarabharati Swami of Sri Kudli Sringeri Mutt case (referred supra) it is held that the next test will be a question of status; highly placed public functionaries, or very busy captains of industry and the like should not, unless the prima facie case is serious, be compelled to attend. If these principles are applied to the present facts of the case, though the petitioner is busy industrialist, who intend to establish another industry in the composite State of Andhra Pradesh by illegal means i.e. allegedly paying approximately Rs.139 crores for transfer of prospecting license. Therefore, his pre-occupation in the affairs of various companies or industries is not a ground in view of the seriousness of the case involving more than Rs.100 crores for granting largesse by the Government i.e. transfer of prospecting licence by M/s Raghuram Cements Limited, in violation of settled guidelines for such transfer. When the petitioner allegedly resorted to such practice to establish an industry, the Principal Special Judge for CBI Cases exercised his discretion to negate the relief. If the petitioner is aggrieved by the direction for taking up the matter on every Friday, he can challenge the order passed by this Court in PIL No.145 of 2015 in appropriate proceedings. But to overcome difficulty in appearance, on account of direction issued by this Court, the petitioner cannot resort to procedure under Section 205 of Cr.P.C. - there are no illegality in the discretion exercised by the Principal Special Judge for CBI Cases warranting interference of this Court while exercising power under Section 482 of Cr.P.C. since this Court cannot regulate or issue any direction to the subordinate Courts in passing discretionary orders, which purely lies on the Magistrate or the Judge, who is exercising power of the Magistrate under special enactment. Consequently, the petition is liable to be dismissed. Issues Involved:1. Petition to quash the order dismissing the application under Section 205 of Cr.P.C.2. Request to dispense with the petitioner's appearance on all dates of adjournments.3. Examination of the legality of the order passed by the trial court.4. Consideration of the grounds for exemption from personal appearance.5. Analysis of the judicial discretion exercised by the trial court.Detailed Analysis:1. Petition to Quash the Order Dismissing the Application under Section 205 of Cr.P.C.:The petitioner filed a criminal petition under Section 482 of Cr.P.C. to quash the order dated 08.03.2016, which dismissed the application under Section 205 of Cr.P.C. by the Principal Special Judge for CBI Cases, Hyderabad. The petitioner sought to dispense with his appearance before the court on all dates of adjournments due to his business commitments and the inconvenience caused by traveling from Delhi to Hyderabad every Friday.2. Request to Dispense with the Petitioner's Appearance on All Dates of Adjournments:The petitioner, a Director on the Boards of several companies, argued that his business exigencies and frequent travel caused undue hardship and financial loss. He requested the court to allow his counsel, Sri Bharadwaj Reddy, to represent him on all dates of adjournments. The respondent, CBI, opposed this request, citing the serious nature of the allegations against the petitioner, including criminal conspiracy and economic offenses involving significant amounts of money.3. Examination of the Legality of the Order Passed by the Trial Court:The court examined the legality of the trial court's order, considering the principles laid down in various judgments. The court noted that the inherent power under Section 482 Cr.P.C. should be exercised sparingly and only to correct patent illegalities or prevent miscarriage of justice. The court referred to the principles established in 'Hamida v. Rashid alias Rasheed' and 'Madhu Limaye v. State of Maharashtra,' emphasizing that the power should not be used if there is a specific provision in the Code for redressal.4. Consideration of the Grounds for Exemption from Personal Appearance:The court considered the petitioner's grounds for exemption, including business commitments and financial loss. However, it noted that the petitioner could file an application under Section 317 of Cr.P.C. for exemption on specific dates rather than a blanket exemption under Section 205 of Cr.P.C. The court highlighted the serious nature of the allegations against the petitioner, including bribery and corruption, and the significant amounts involved, which justified the trial court's decision to insist on the petitioner's appearance.5. Analysis of the Judicial Discretion Exercised by the Trial Court:The court analyzed the judicial discretion exercised by the trial court, noting that the power under Section 205 of Cr.P.C. is discretionary and should be exercised judiciously. The court referred to various judgments, including 'M.D. Jindal v. Angad Paul & others' and 'Basavraj R. Patil vs. State of Karnataka,' which emphasized that the discretion to exempt personal appearance should be used sparingly, especially in serious and grave offenses. The court concluded that the trial court rightly exercised its discretion in declining the petitioner's request for exemption, given the gravity of the economic offenses involved.Conclusion:The High Court upheld the trial court's order, dismissing the petitioner's request for exemption from personal appearance under Section 205 of Cr.P.C. The court emphasized that the discretion to grant such exemptions should be exercised judiciously, especially in cases involving serious and grave offenses. The court provided the petitioner with the liberty to file an application under Section 317 of Cr.P.C. for exemption on specific dates if necessary. The criminal petition was dismissed, and all miscellaneous applications pending were also closed.