2022 (12) TMI 274 - HC - Insolvency and Bankruptcy

Court grants exemption from personal appearance under Section 205 Cr.P.C. with conditions

The court set aside the trial judge's order and granted the petitioner's application for exemption from personal appearance under Section 205 of the ... Seeking exemption from personally appearing before the trial court on each and every date of the said criminal proceeding on 9th March, 2021 - Section 205 of the Code of Criminal Procedure - HELD THAT:- Section 205 confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during trial. It is manifest from a complaint reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as well as the conduct of the person summoned. It is the foremost duty of the trial court to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence - It is obvious that no useful purpose would be served by requiring personal attendance of the petitioner because the fate of the trial would depend on complainant’s success in establishing the charge against the accused persons beyond any shadow of doubt. Allegation made against the accused is not of such nature where personal attendance of the accused and his identification is absolutely necessary. Moreover, when the petitioner undertakes that he would not dispute his identity, this Court fails to understand as to why his application under Section 205 of the Cr.P.C was rejected. The learned trial judge failed to consider that the nature of offences attributed to the petitioner was not of such nature that the petitioner should be present before the court throughout the trial preferable on each and every date. In the impugned order, the learned trial judge observed that the nature of job of the petitioner is not that all monumental importance - The learned trial judge also failed to appreciate that no useful purpose would be served by requiring personal attendance of the petitioner and also the course of trial of the case would not hamper on account of his absence. An application under Section 205 of the Cr.P.C cannot be rejected on the plea that the accused has alternative remedy Section 317 of the Cr.P.C. The learned trial court also failed to consider that provision under Section 205 of the Cr.P.C is to be liberally construed. 24. In view of the above discussion the impugned order dated 19th May, 2022 passed by the learned Judge-in-Charge, 2nd Special Court, Calcutta is liable to be set aside. The application filed by the petitioner under Section 205 of the Cr.P.C is allowed. Issues Involved:1. Application for exemption from personal appearance under Section 205 of the Cr.P.C.2. Applicability of Section 205 of the Cr.P.C in cases triable by a Special Judge.3. Comparison with provisions under Section 317 of the Cr.P.C.4. Judicial discretion in granting or rejecting exemption from personal appearance.Detailed Analysis:1. Application for exemption from personal appearance under Section 205 of the Cr.P.C.:The petitioner, accused in a complaint case under Section 236 of the Insolvency and Bankruptcy Code (IBC), filed an application under Section 205 of the Cr.P.C. seeking exemption from personal appearance due to various personal and professional commitments. The trial judge rejected this application, citing that the petitioner attended meetings virtually and that his office was close to the trial court. The petitioner argued that his professional duties, including his role as a Managing Director and his involvement in philanthropic activities, necessitated frequent travel, making regular court appearances impractical. He also pledged not to dispute his identity or the evidence recorded in his absence.2. Applicability of Section 205 of the Cr.P.C in cases triable by a Special Judge:The petitioner contended that Section 205 of the Cr.P.C. is applicable not only in Magistrate triable cases but also in cases triable by a Special Judge. The opposing counsel argued that the trial judge correctly exercised his discretion in rejecting the application, emphasizing that the petitioner resided and worked close to the trial court, thus facing no significant impediment in attending the court proceedings.3. Comparison with provisions under Section 317 of the Cr.P.C.:The opposing counsel suggested that the petitioner could seek relief under Section 317 of the Cr.P.C., which allows for trial in the absence of the accused under certain conditions. However, the court noted that Section 317 operates under different circumstances compared to Section 205. Section 317 is applicable when the judge is satisfied that personal attendance is not necessary in the interest of justice or if the accused disturbs court proceedings, whereas Section 205 is a general provision empowering the court to exempt personal appearance.4. Judicial discretion in granting or rejecting exemption from personal appearance:The court emphasized that Section 205 confers discretion on the court to exempt an accused from personal appearance if it is deemed unnecessary for the trial's progress. The court found that the trial judge failed to consider the petitioner's professional commitments and the nature of the alleged offences, which did not necessitate his constant presence. The court highlighted that the petitioner's professional role and his undertakings to not dispute his identity or the evidence recorded in his absence should have been sufficient grounds for granting the exemption.Conclusion:The court set aside the trial judge's order rejecting the petitioner's application under Section 205 of the Cr.P.C., allowing the exemption from personal appearance with conditions. The petitioner must be represented by an advocate on all trial dates, not leave the country without court permission, not challenge his identity, and not dispute evidence recorded in his advocate's presence. The court also noted that the trial judge retains the authority to require the petitioner's personal appearance if necessary.