Bombay High Court
Taibai Wd/O Rangnathrao Santanse ... vs The State Of Maharashtra on 3 August, 2017
Bench: V.L. Achliya
1 CRI.W.P NO. 69 OF 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 69 OF 2017
1. Taibai w/o Rangnatghrao Santanse,
Deceased (Deleted as per order
of the Hon'ble Court dt.27.07.17
2. Madhusudan S/o Mahadev Sovale,
Age : 78 Yrs, Occ. Pensioner,
R/o Abhinav Co-operative Housing
Society, Aurangabad
3. Rajendra S/o Rangnathrao Santanse,
Age : 43 Yrs, Occ. Trader,
R/o Maya Nagar, Plot No.102, ..PETITIONERS
N-2, CIDCO, Aurangabad (Original Accused)
V E R S U S
The State of Maharashtra,
Through The Police Station Officer,
Mukundwadi Police Station,
Aurangabad. .. RESPONDENT
...
Mr. K.H.Surve, Advocate for Appellants.
Mr. S.Y.Mahajan, A.P.P. for Resp. - State.
...
CORAM : V.L.ACHLIYA, J.
DATE : 03rd AUGUST, 2017
....
OREAL JUDGMENT :
1. Rule, returnable forthwith. Learned A.P.P waives notice for
the respondents. By consent, petition heard finally.
2. In view limited challenge raised in the petition, it is not
2 CRI.W.P NO. 69 OF 2017
necessary to deal with factual aspect of the matter.
3. By the present petition, the petitioner has challenged
order dated 15.10.2016 passed by the Judicial Magistrate First Class,
Aurangabad in Regular Criminal Case No. 1005/2013. By the
impugned order, learned Judicial Magistrate, First Class, Aurangabad
has rejected the application moved by the petitioner seeking permanent
exemption from the appearance.
4. Heard the learned counsel for the petitioner and APP for the
State. Perused the application seeking permanent exemption filed by the
petitioner and the order passed by the trial court. It appears from the
record that, petitioners are charged for committing offence punishable
under section 406,420,468,471 r/w 34 of the Indian Penal Code with
allegations that they have created false and fabricated documents of will
and got transferred the plot located in the area CIDCO, N-2,
Aurangabad. The petitioner along with deceased accused Taibai moved
application vide Exh. 25 before the trial court seeking permanent
exemption. They have sought the permanent exemption on the ground
of old age as well as ill-health. By the impugned order dated 15.10.2016
the trial court has rejected the application by observing that the age of
the accused No.3 is only 37 years and no medical certificate produced in
support of illness of the accused no.1 and 2. Being aggrieved, the
petitioners have preferred this petition. During the pendency of the
3 CRI.W.P NO. 69 OF 2017
petition, petitioner No.1 Taibai i.e. accused No.1 expired.
5. In nutshell, it is the contention of the learned counsel for
petitioners that, the order passed by trial court is totally based upon
non application of mind. It is pointed out that, in the charge-sheet itself
the ages of the accused No.1 and 2 have been disclosed as 71 and 73
years respectively. It is further submitted that, in view of statement
made in the application, that accused will not raise any objection as to
their identification, the court ought to have granted the application. He
further submits that, while dealing with the application, trial court
ought to have taken into consideration the very object of Section 205 of
the Code of Criminal Procedure.
6. Learned APP has supported the order passed by trial court
and submits that in absence of evidence to show the illness of accused
No.3, the trial court was justified in passing the impugned order.
7. Section 205 of the Code of Criminal Procedure confers the
discretion on the court to exempt the accused from personal appearance
till such time his appearance is considered by the Court to be not
necessary during the trial. While dealing with such application, seeking
personal exemption the Magistrate has to bear in mind the nature of the
case, the conduct of the accused and necessity of personal attendance of
the accused on each and every date of hearing of the case. It is expected
4 CRI.W.P NO. 69 OF 2017
that Magistrate should examine the useful purpose which would be
achieved by requiring personal attendance of the accused. He has also
to take into consideration the effect of absence of accused over the
progress of the trial. Thus, exercise of powers under section 205 of the
Code of Criminal Procedure is necessarily exercise of judicial discretion
by the Magistrate. Such powers are to be exercised in a judicious
manner. No hard and fast rules can be laid down as to exercise of such
discretion by the Magistrate. However, while dealing with the
application in terms of section 205 of Code of Criminal Procedure, the
court is expected to consider whether any useful purpose would be
served by insisting the personal attendance of the accused on each and
every date of hearing of case. The court may consider to grant personal
exemption from appearance up to a particular stage or till further
orders, as the court may deem fit and proper. Even in a case wherein
the accused granted exemption it is found that, the grant of exemption
from personal appearance to accused resulting into hampering the
progress of the case, in that eventuality then the court may call upon
such accuse to personally attend the court. The courts are expected to
normally adopt a balanced approach and ensure that the accused are
not subjected to unnecessary harassment and particularly in the cases
filed at the instance of the private party. While considering such powers
the courts should adopt a liberal and humanitarian approach in the
case of women, old, infirm and sick persons.
5 CRI.W.P NO. 69 OF 2017
8. In the instant case, in the charge-sheet itself the age of accused
No.1 and 2 have been shown as 71 and 73 years respectively. The
charge-sheet was filed in the year 2013. At the time of the application,
the age of applicant Nos.1 and 2 were about 73 years and 76 years,
respectively. The court ought to have taken into consideration their age
as well as the nature of the offence while dealing their application
seeking permanent exemption. It appears that, the case is filed on
account of certain dispute regarding the property. While passing the
order the court has observed that the age of the applicant No.3 is 43
years and the documents regarding illness of accused No.1 and 2 have
not been filed on record. In fact, the learned Magistrate ought to have
examined the case of each of the accused separately. The age of the
applicant No.1 and 2 should have been taken into consideration while
dealing with the application for the purpose of granting exemption.
Disclosure of ailment and documentary evidence, should not have been
given much weightage. In this view, the order passed by the trial court
appears to be passed without due application of mind.
9. In the case of Bhaskar Industries Ltd. Vs. Bhavani Denim &
Apparels Ltd and Others (2001) 7 Supreme Court Page No.401. the
Apex Court while considering the purport of section 205 of the Code of
Criminal Procedure, observed in paras 14 and 19, as under :-
"14. The normal rule is that the evidence shall be taken
in the presence of the accused. However, even in the
6 CRI.W.P NO. 69 OF 2017
absence of the accused such evidence can be taken but
then his counsel must be present in the court, provided
he has been granted exemption from attending the court.
The concern of the criminal court should primarily be
the administration of criminal justice. For that purpose
the proceedings of the court in the case should register
progress. Presence of the accused in the court is not for
marking his attendance just for the sake of seeing him in
the court. It is to enable the court to proceed with the
trial. If the progress of the trial can be achieved even in
the absence of the accused the court can certainly take
into account the magnitude of the sufferings which a
particular accused persons may have to bear with in
order to make himself present in the court in that
particular case.
19. The position, therefore, boils 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 personal presence
would itself inflict enormous suffering or tribulations on
him, and the comparative advantage would be less. Such
discretion need be exercised only in a rare instances
where due to the far distance at which the accused
reside or carries on business or on account of any
physical or other good reasons the Magistrate feels that
dispensing with personal attendance of the accused
would only be in the interest of the justice. However, the
Magistrate who grant such benefit to the accused must
take the precaution enumerated above, as a matter of
7 CRI.W.P NO. 69 OF 2017
course. We may reiterate that when an accused makes
an application to a Magistrate through his duly
authorized counsel, praying for affording the benefit of
his personal presence being dispensed with the
Magistrate can consider all aspect and pass appropriate
orders thereon before proceeding further."
10. Thus in the light of discussion made in the forgoing paras,
I am of the view that, impugned order passed by the learned Magistrate
is without proper application of mind.
11. In the result I am inclined to allow the petition and set-
aside the impugned order further grant liberty to the petitioners to
move fresh application supported with documents. Learned Magistrate
is directed that in case such application is filed, the application be
decided on its own merit.
12. The rule made absolute in the above terms.
[V.L.ACHLIYA, J.]
YSK/
