Section 205 Cr.P.C.- exemption from personal appearance from date to date attendance before trial court – distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018

(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV & ORS. … APPELLANTS

VERSUS

TEH STATE OF BIHAR & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the

judgment dated 17.04.2017 of the Patna High

Court by which judgment application filed by

the accused-appellants under Section 482 of the

Code of Criminal Procedure challenging the

order dated 13.08.2013 passed by the SubDivisional

Judicial Magistrate, Patna has been

dismissed by the High Court.

2. Brief facts necessary to be noted for

deciding the appeal are:

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The second respondent filed a complaint in

the Court of Sub-Divisional Judicial

Magistrate, Patna alleging offence committed by

the accused as well as Arnesh Kumar, her

husband. The Magistrate vide order dated

11.10.2012 finding a prima facie case under

Section 498A and Section 4 of the Dowry

Prohibition Act summoned the accused as well as

Arnesh Kumar, husband of the complainant. The

accused as well as Arnesh Kumar filed an

application for anticipatory bail during the

pendency of the said application. Non-bailable

warrants were issued by the Magistrate on

23.12.2012. All the accused that is appellants

as well as Arnesh Kumar filed an application

dated 17.01.2013 praying for recall of nonbailable

warrant and dispensing with their

physical appearance in the case. It was

appellants’ case that said application was

filed because appellant No.1, father of Arnesh

Kumar is a retired Army Official residing in

Pune with appellant No.2 and other appellants

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were also residents of Pune, Maharashtra and

they have to come from a distance. It was

prayed by the accused that they be exempted

from the personal appearance in the case. All

the accused except Arnesh Kumar, husband of

complainant were granted anticipatory bail.

Anticipatory bail was granted by the District

and Sessions Judge, Patna on 21.06.2013 to all

the accused except Arnesh Kumar, husband of the

complainant. The Sub-Divisional Magistrate by

order dated 13.08.2013 rejected the application

filed by the accused under Section 205 Cr.P.C.

3. While rejecting the application on

13.08.2013, the Magistrate gave the following

reasons:

(i) Petitioners appear to be hale and

hearty and are not suffering from any

type of disease which may be impediment

in appearing before the court.

(ii) Nature of offences requires that

accused-petitioners and also the

complainant should be present before the

court preferably on each and every date

expecting good sense prevails upon them.

(iii) Their appearance is also

desirable for the purpose of

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conciliation since the very enactment of

Section 498A of IPC and Dowry

Prohibition Act primarily meant for

restoration of conjugal harmony.

4. Challenging the order dated 13.08.2013, an

application under Section 482 Cr.P.C. was filed

which has been dismissed by the Patna High

Court. The High Court dismissed the application

taking a new ground that a prayer for exemption

from personal appearance under Section 205

Cr.P.C. can only be made at the stage of first

appearance of the accused. Once the accused

appears before the court in person without

making any application for dispensing with the

personal appearance under Section 205 Cr.P.C.,

at a subsequent stage, such an application

would not be maintainable. Aggrieved by the

said order this appeal has been filed.

5. We have considered the submissions of the

learned counsel for the parties and perused the

records.

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6. Section 205 Cr.P.C. and Section 317

Cr.P.C. which are relevant in this case are

extracted:

“Section 205. Magistrate may

dispense with personal attendance of

accused.— (1) Whenever a

Magistrate issues a summons, he may,

if he sees reason so to do, dispense

with the personal attendance of the

accused and permit him to appear by

his pleader.

(2) But the Magistrate inquiring

into or trying the case may, in his

discretion, at any stage of the

proceedings, direct the personal

attendance of the accused, and, if

necessary, enforce such attendance

in the manner hereinbefore provided.

317. Provision for inquiries and

trial being held in the absence of

accused in certain cases.—(1) At any

stage of an inquiry or trial under

this Code, if the Judge or

Magistrate 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 Court, the Judge or

Magistrate may, if the accused is

represented by a pleader, dispense

with his attendance and proceed with

such inquiry or trial in his

absence, and may, at any subsequent

stage of the proceedings, direct the

personal attendance of such accused.

(2) If the accused in any such case

is not represented by a pleader, or

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if the Judge or Magistrate considers

his personal attendance necessary,

he may, if he thinks fit and for

reasons to be recorded by him,

either adjourn such inquiry or

trial, or order that the case of

such accused be taken up or tried

separately.”

7. The Magistrate has rejected the application

filed under Section 205 Cr.P.C. on different

grounds as noticed above. The High Court took

entirely new grounds for dismissing the

application filed under Section 482 Cr.P.C.

without adverting to the grounds which were

taken by the Magistrate for declining the

prayer.

8. We first take up the grounds given by the

High Court for rejecting the application. The

High Court has observed that prayer for

exemption from personal appearance under

Section 205 Cr.P.C. can only be made at the

stage of first appearance of the accused and

once the accused appears before the court in

person without making any application for

dispensing with the personal appearance under

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Section 205 Cr.P.C. at a subsequent stage, such

an application would not be maintainable.

9. The High Court has noticed that the

accused had already appeared after obtaining

the order of pre-arrest bail and furnishing

bond and sureties to the satisfaction of the

court. The pre-arrest bail was granted to the

accused by the District and Sessions Judge by

order dated 21.06.2013 and thereafter the

accused appeared before the court as has been

noticed in paragraph 8 of the judgment of the

High court itself.

10. The observation of the High Court that the

accused has filed application under Section 205

Cr.P.C. at a subsequent stage after appearing

before the court is factually incorrect. The

application was filed by the accused under

Section 205 Cr.P.C. on 17.01.2013. Thus, the

application under Section 205 Cr.P.C. was filed

prior to the appearance in the court and the

same would have very well been considered by

the Magistrate despite their appearance in the

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court after obtaining the pre-arrest bail. The

grant of exemption from personal appearance in

the court on each and every date was required

to be considered in view of the fact that

application was filed on 17.01.2013 much before

their appearance in the court. Further, the

Magistrate had not rejected the application on

the ground that application is not

entertainable after appearance of the accused

before the court. We, thus, are of the view

that aforesaid ground given by the High Court

for rejecting the application is unfounded.

There is one more reason due to which the High

Court’s order cannot be sustained.

11. The High Court in its order observed that

there is another provision that is Section 317

Cr.P.C. which gives discretion to the court to

exempt a person from personal appearance. The

High Court observed that the remedy available

to the accused was under Section 317 Cr.P.C.

and not under Section 205 Cr.P.C. Section 317

Cr.P.C. which empowers the Magistrate, at any

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stage of inquiry or trial for reasons to be

recorded to exempt attendance of the accused.

The Magistrate was not powerless to consider

the prayer under Section 317 Cr.P.C. as per the

view taken by the High Court. Thus, we do not

find any impediment in the power of the

Magistrate to consider the application of

accused for their exemption from personal

appearance.

12. Now, we advert to the reasons given by the

Magistrate for rejecting the application. As

noticed above, first reason given by the

Magistrate is that all the accused appear hale

and hearty and there is no suffering from any

type of disease which may be impediment in

appearing before the court. Application was not

filed by the accused on the ground that they

suffer from any physical illness and hence the

said reason given by the Magistrate is wholly

out of place. The second reason is that accused

and complainant should be present before the

court on each and every date expecting good

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sense prevail between them. We fail to see this

as any valid ground for not considering actual

grounds given by the accused for seeking

exemption. Third ground given was regarding

conciliation which requires the appearance of

the accused desirable.

13. With regard to this ground it is sufficient

to notice that application under Section 482

Cr.P.C. was not filed by the husband, Arnesh

Kumar whose pre-arrest bail was already

rejected. The present appellants, thus, were

not pressing application under Section 482

Cr.P.C. for Arnesh Kumar, the husband who could

have very well participated in the proceedings.

Thus, the above ground was also not available

for rejection of the application. In the

application the grounds which were given by the

appellants was that, appellant No.1 father of

Arnesh Kumar is retired Army personnel and

residing in Pune with his wife that is

appellant No.2. Appellant Nos.3 and 4 were also

residing at Pune. Arnesh Kumar, the husband was

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working at Hyderabad. The Magistrate has not

considered the grounds which were taken by the

appellants for seeking exemption. It was on the

record before the High Court that distance

between residence of the accused and the place

of trial at Patna is 1750 kms. It was further

stated that appellant No.3, Ashok Kumar Yadav

was a business man and running Company in Pune

and appellant No.4 was a student of BCA in

Pune. Taking into consideration the entire

facts and circumstances and the grounds taken

by the appellants in their application under

Section 205 Cr.P.C. as well as in the

application under Section 482 Cr.P.C. filed

before the High Court, we are of the view that

sufficient grounds were made out for granting

exemption from personal appearance of the

appellants in the trial. The Magistrate

committed error in not adverting to the grounds

taken for praying the exemption and rejected

the application on the reasons which were

unfounded. The Magistrate under Section 205

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sub-Section (2) Cr.P.C. is empowered at any

stage to direct personal appearance of the

accused hence as and when personal appearance

of the accused is required the Magistrate is

empowered to issue necessary orders if so

decides.

14. In the result, the appeal is allowed, the

judgment and order of the High Court dated

17.04.2017 as well as order of the SubDivisional

Judicial Magistrate dated 13.08.2013

are set aside, application filed by the

appellants under Section 205 Cr.P.C. is

allowed. The personal appearance of the

appellants is exempted. This, however, shall

not preclude the Magistrate to pass appropriate

orders under Section 205(2) Cr.P.C. if and when

personal appearance of the appellants is

required.

……………………..J.

( A.K. SIKRI )

……………………..J.

NEW DELHI, ( ASHOK BHUSHAN )

MARCH 16, 2018.