TaxTMI 
TaxTMI 
2018 (9) TMI 2107
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....ppearance before the Court on all dates of adjournments permitting his counsel Sri Bharadwaj Reddy to appear on his behalf, on the sole ground that the petitioner is a Director on the Boards of several companies, as such he is preoccupied with management and attending day to day affairs on account of business exigencies of the companies. Apart from that he is required to travel from Delhi to appear before the Court at Hyderabad on every Friday spending not less than two days. On account of posting C.C.No.12 of 2013 on every Friday, the petitioner has been facing undue hardship in meeting his business commitments, in addition to continuous financial loss caused to him. Hence, the petitioner requested to dispense with his appearance permitting his counsel Sri Bharadwaj Reddy to appear on his behalf. The respondent - Central Bureau of Investigation (for short "C.B.I.") filed counter denying material allegations inter alia contending that Sri Puneet Dalmia (accused No.3) of M/s. Dalmia Cement (Bharat) Limited (accused No.12) conspired with Sajjala Diwakar Reddy (accused No.7) promoter of M/s. Eswar Cements Private Limited (accused No.13) entered into Memorandum of Understanding (for....
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....of the allegations referred above, the petitioner allegedly committed grave economic 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. After completion of investigation, C.B.I. filed charge sheet against the petitioner herein and other accused for various offences referred supra. It is further alleged in the counter the ground on which the petitioner sought for relief to dispense with his appearance on account of business commitments and pre-occupation in connection with his business activities and inconvenience being caused to the petitioner to appear before the Court, is not at all a ground and prayed to dismiss the petition. Upon hearing argument of both the counsel, the Principal Special Judge for CBI Cases, Hyderabad dismissed the petition on various grounds. Aggrieved by the order passed by the Principal Special Judge for CBI Cases, Hyderabad, the petitioner preferred the present petition on the same grounds while contending that the petitioner gave consent that he will not claim or set up defence that the evidence is recorded in his absence, in the event of passing order in his favour and that....
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....itting 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?" P O I N T The present criminal petition is filed under Section 482 of Cr.P.C. In "Hamida v. Rashid alias Rasheed (2008) 1 SCC 474", 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 content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in "Madhu Limaye v. State of Maharashtra 1978CriLJ165" and it was held as under: The following principles may be stated in relation to the exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse ....
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.... power under Section 205 of Cr.P.C. to dispense with the appearance of the petitioner on all dates of adjournments. Learned Senior counsel for the petitioner would contend that the Court can dispense with the appearance during trial or enquiry while permitting the accused to be represented by his authorized advocate by exercising power under Section 205 of Cr.P.C., and strange argument is advanced in addition to the above argument that instead of filing petition under Section 317 of Cr.P.C., the petitioner filed petition under Section 205 of Cr.P.C. Therefore, quoting wrong provision of law is not a ground to dismiss the petition, if the petitioner is entitled to claim relief in a petition filed under Section 205 of Cr.P.C. But this contention cannot be accepted for the simple reason that there is lot of distinction between Section 317 of Cr.P.C. and Section 205 of Cr.P.C. Under Section 317 of Cr.P.C., the absence of the petitioner can be condoned either during trial or enquiry, but power under Section 205 of Cr.P.C. can be exercised only to dispense with the appearance of the petitioner during trial/enquiry by the Judge/Magistrate if he is represented by Counsel duly authorized....
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....s it lawful to continue in his absence." Similarly in "Sultan Singh Jain v. The State" (referred supra), the Court made the following observation: "There is no section in the Criminal Procedure Code which provides that the accused must be present at every hearing of the case, though there are several sections in the Code which show that the presence of the accused at certain stages of the proceedings is specifically provided for. It is, however, one of the vital principles of the administration of criminal justice, which is universally acknowledged, that in a criminal trial the Court should not proceed ex parte against an accused person." It is further held that while, therefore, it cannot be denied that the presence of the accused at the trial is necessary, the Code itself shows that the trial Court has discretion in certain circumstances to exempt the personal attendance of the accused. There is no specific section to that effect except Section 205 of Cr.P.C., but it is implied in some of the other sections in the Code. For example, Section 353 of Cr.P.C. provides for recording of evidence in the presence of the accused. Therefore, on the strength of the principle laid down....
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....ts corollary to benefit the Court in reaching the final conclusion." In addition to the above two judgments of other High Courts, this Court in Crl.R.C.No.2337 of 2015 in C.C.No.26 of 2014 on the file of Principal Special Judge for CBI Cases while exercising power under Section 317 (1) of Cr.P.C. dispensed with the appearance of the petitioner therein making observation that the appearance of the petitioner would not serve any purpose on every date of adjournment. In "Sri Rameshwar Yadav v. The State of Bihar AIR2018SC1435" the Apex Court in a similar situation while dealing with a petition filed by a businessman, who has to travel long distance more than 1700 kms, sought for exemption from appearing before the Court by filing an application under Section 205 of Cr.P.C. in a case registered for the offence punishable under Section 498-A of I.P.C. and under 4 of Dowry Prohibition Act, held that grant of exemption from personal appearance in Court on each and every date was required to be considered in view of fact that application was filed much before their appearance in Court and finally granted exemption. In "Sushila Devi vs Sharda Devi 1961 CriLJ 819" Madhya Pradesh Hig....
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....t, if the Court insists the appearance of the petitioner on all dates of adjournment, the petitioner will be put to serious harassment and embarrassment and it effects his business activities, being the director of various companies. No doubt, it would restrict the petitioner's movements on Friday of every week only when cases are taken up by the Court below and on rest of the days in the week, the petitioner can undertake his business activities. Insistence of petitioner's appearance before the Court below would not infringe personal liberty guaranteed under Article 21 of the Constitution of India, since such liberty can be deprived by law. Appearance of the accused in criminal cases on the dates of adjournment is mandated by the procedure, unless his appearance is exempted by the Court by exercising power under Section 205 Cr.P.C or dispense with the petitioner's appearance on the dates of adjournment by exercising power under Section 317 Cr.P.C. When the law mandates appearance of the accused in cases like grave economic offences, it would not amount to infringement of fundamental right guaranteed under Article 21 of the Constitution of India. Undoubtedly, it is the obligatio....
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....ampore Municipality 1989 Cri L J 523", "Shyam Prasad Reddy vs. State of AP 1991 Cri L J 2299", "Shivani Sadannad vs. State 2002(62) DRJ 678" and "Noorjahan vs. Moideen 2001 (2) Cri 194 (Ker).". In "Dasari House of Publications Pvt. Ltd. vs. M/s. Apple Credit Corporation Ltd. Secunderabad & Anr 2002 Cri. L.J. 47551" the Court held that under Section 205 whenever a Magistrate issues summons to the accused, it can dispense with the personal appearance and permit him to appear by his pleader. No further guidelines are mentioned under Section 205 and it is left to the discretion of the Magistrate to exercise his discretion judicially. Therefore, based on such conclusions, various High Courts are of the consistent view that Section 205 Cr.P.C can be invoked either in summons or in warrant cases and it is purely a discretionary power of the Magistrate. In "Sheela Kumar W/o Arvind Prasad and Ors. vs. State of Bihar through Vigilance 2009CriLJ2675", the Patna High Court on analysing the entire law laid down in various judgments, reiterated the same principle and laid down certain guidelines as to when such power has to be exercised by the Magistrate. Therefore, the consistent view of var....
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....esent in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding with the case? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that he magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, bogs down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his persona....
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.... is abundantly clear that in serious and grave offences, the Magistrate may put on guard to exercise such discretion to exempt the accused from personal appearance on the dates of adjournment in serious and grave crimes. In Sheela Kumar case (referred supra), the Patna High Court laid down certain guidelines for exercise of such discretion which are enumerated as follows: "The findings arrived at, after noticing various decisions and principles is summed up as follows: (A) Where summon is issued at the first instance, whether it may be in summons case or warrant case, application under Section 205 of the Code can be allowed in categories as follows: i) If accused resides or carries on business at a far off place. ii) On account of physical reasons. iii) If insistence of his personal presence would implicit enormous suffering or tribulation on him and comparative advantage of disallowing such petition would be less. iv) Purdanashin women. v) Old and sick person. vi) Factory workers and labourers. vii) Busy business people or public functionaries. viii) Corporate employees. (B) The a....
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.... can be exempted in less serious offences, but not to the offences of longer period of punishment is prescribed or if the offences are of serve nature involving moral turpitude, the presence of the accused shall be insisted, the presence of the accused dispensed with ordinarily by exercising judicial discretion under Section 205 Cr.P.C. There is no straight jacket formula to decide which is grave and serious crime to exercise judicial discretion by the Magistrate under Section 205 Cr.P.C. Since the petitioner allegedly committed serious financial fraud amounting to crores of rupees, at the behest of politicians, such case can be treated as grave and serious offence. The Supreme Court in "Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation AIR 2013 SC 1933" held that Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Thus, the Apex C....
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....e petitioner cannot be exempted in view of the gravity and seriousness of the economic fraud involving crores of rupees. The long line of perspective pronouncements of Apex Court, this Court and other High Courts made clear that the power of Magistrate under Section 205 Cr.P.C is purely discretionary in nature and such power has to be exercised judiciously and when the Magistrate is alone competent to exercise his judicial discretion recording specific reasons for deviating the normal procedure, such power has to be exercised sparingly under Section 205 Cr.P.C. In T.G.N. Kumar case (referred supra), the Supreme Court held that on the plain language of Section 317 of Cr.P.C., it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 317 of the Code as well. Therefore, on analysis of entire law laid down by various Courts, the discretion is totally vested with the Magistrate to dispense with the appearance of the accused and the Court must also see that such exemption shall not be....
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....of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinabove provided." It appears from the law laid down by the Apex Court that only in summons case, the Court can dispense with the appearance by exercising power under Section 205 of Cr.P.C. the Apex Court further referred judgment of Bombay High Court rendered in "Dorabshah v. Emperor AIR1926Bom218" and the Bombay High Court held that where the accused is permitted to appear by his pleader under Section 205 of Cr.P.C. the pleader may on his behalf be examined and may plead guilty under Sections 242 and 243. Whether the Court can act upon an admission of guilt by the pleader under Sections 242, 243, 251A, 255 and 271 does not directly arise in the case and expressed no opinion on it. The Court expressed its opinion that it is sufficient to say that the language of those sections and the effect of admissions under them are entirely different. The Court was not impressed with the argument that the accused will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purpose of Section 205 of Cr.P.C. and thereby negated th....
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....pass appropriate orders thereon before proceeding further." The Court has drawn distinction between warrant case and summons case and finally concluded that the Court can exercise power in certain cases. One of the contentions raised by the learned Senior Counsel for the petitioner is that in "Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation" (referred supra) the Apex Court made certain observations against the petitioner therein, not against the petitioner herein. But this contention is not based on any sound reasoning simply because the petitioner herein did not approach the Apex Court and the petitioner herein is accused No.3 in the same C.C.No.12 of 2013, whereas Sri Y.S.Jagan Mohan Reddy is accused No.1. Therefore, the observations whatever made by the Apex Court in Y.S.Jagan Mohan Reddy's case will have its own bearing on the issue involved in C.C.No.12 of 2013, on this ground the petitioner cannot be exempted from appearance before the Court by exercising power under Section 205 of Cr.P.C. The power under Section 205 of Cr.P.C. is purely discretionary in nature and while deciding such application, the Magistrate or the Judge has to bear in mind the nature of t....
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....proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants" as observed in "Trimbak Gangadhar Telang v Ramchandra Ganesh Bhide (1977) 2 SCC 437", "Mohd. Yunus v Mohd. Mustaqim & Ors. (1983) 4 SCC 566" and "State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afshan Guru 2003 (6) SCC 641" In view of the aforesaid discussion, this Court cannot interfere with the discretionary orders passed by the Magistrate or subordinate judges liberally unless the Court concludes that there is manifest error in the order under challenge or if the order is not set aside, it would lead to misuse or abuse of process of Court. Therefore, the High Court must be slow in interfering with such discretionary orders passed by the Magistrate. In "Devanand Upadhayay v. the Union of India 2006 Cri.L.J 63" the Single Judge of Patna High Court observed that "the Court below has chosen not to exercise its discretion in favour of the petitioner and this Court, while exercising inherent powers under Section 482 of the Code, should not regulate and guide the exercise of discretion vested in the Court below." In the facts of....