Allahabad High Court
Santosh Chauhan And Others vs State Of U.P.And Another on 24 March, 2011
Bench: Shri Kant Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
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AFR
Court No. - 49
Case :- APPLICATION U/S 482 No. - 4761 of 2011
Petitioner :- Santosh Chauhan And Others
Respondent :- State Of U.P.And Another
Petitioner Counsel :- M.S. Chauhan
Respondent Counsel :- Govt.Advocate
Hon'ble Shri Kant Tripathi,J.
1.Heard the learned counsel for the applicants and the learned AGA and perused the record.
2. Keeping in view the facts of the case, it appears that all the offences are bailable.
3. The learned Magistrate, keeping in view the materials on record, arrived at the conclusion that there were sufficient material on record to summon the accused. The finding of the learned Magistrate is based on proper appraisal of the relevant material. The petition has no merit and is liable to be dismissed.
4. The learned counsel for the applicants submitted that the personal attendance of the applicants in the court may be directed to be exempted. This type of direction cannot be issued by this Court in exercise of inherent power, however, the learned Magistrate has power under section 205 Cr.P.C. to grant exemption from the personal attendance of the accused and in appropriate cases that power should be exercised so that the accused persons, particularly, where a large number of persons have been made accused, are not unnecessarily harassed.
5. In the case of Bhaskar Industries Ltd Vs. Bhiwani Denim and Apparels Ltd.[ (2001) 7 SCC 401, the Apex Court has propounded the principles regarding the ambit and scope of section 205 of the Code. Paragraph 19 of the judgement seems to be relevant, which is as follows:
"19.......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 personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course."
6. The aforesaid principles have been followed with approval in the subsequent case of TGN Kumar v State of Kerala, (2011) 2 SCC 772. Paragraphs 8 & 10 of the judgement rendered in TGN Kumar (supra) case seem to be relevant, which are reproduced as follows:
"8. The Section 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 the trial. It is manifest from a plain 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 also the conduct of the person summoned. He shall 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. (See: S.V. Muzumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd. & Anr.7) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.
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10.We respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial."
7. Therefore, the Magistrate while considering an application under section 205 of the Code, has to see whether or not any useful purpose would be served by requiring the personal attendance of the accused in the court. He is further required to see whether or not the progress of the trial is likely to be hampered on account of absence of the accused. As held in the case of Bhaskar Industries (supra), the discretion under section 205 of the Code should be exercised in a judicious manner and the personal presence of the accused should be required only when the trial cannot proceed further without the presence of the accused. If the trial can be held conveniently in absence of the accused, it would be just and expedient to exercise the discretion in favour of the accused and dispense with his personal attendance in the court.
8. In view of the aforesaid, it will be open to the applicants to move an application under section 205 of the Code for dispensing with their personal attendance in the court. If any such application is moved, the same may be considered and disposed of in accordance with the observations made herein before.
9. The petition is, therefore, dismissed.
Order Date :- 24.3.2011
Sharad
