Calcutta High Court (Appellete Side)
Dr. Jatindranath Ganguly & Anr vs Unknown on 4 March, 2022
4.3.2022
S.D.
03.
C.R.R. 1394 of 2011
With
CRAN 1 of 2011 (Old CRAN 913 of 2011) (Not found)
CRAN 2 of 2012 (Old CRAN 1646 of 2012)
In the matter of: Dr. Jatindranath Ganguly & Anr.
......Petitioners.
Mr. Himanshu De, Sr. Adv.,
Mr. A.K. Samanta
Mr. D.P. Samanta
..For the petitioners.
Mr. Pravas Bhattacharya
Mr. Pratick Bose
...For the State.
Learned advocates for the petitioners are present.
Mr. Pravas Bhattacharya and Mr. Pratick Bose, learned advocates
for the State are present in Court. The appointments of the State
advocates may be regularized by the concerned authority.
None has appeared for opposite party no. 2, Sital Bera, upon whom
notice had been served on earlier occasion.
The revisional application is taken up for consideration. The
petitioners who are accused in G.R. Case No. 219 of 2005 pending before
learned Judicial Magistrate, 3rd Court, Tamluk have filed this application
under Sections 401 and 482 of the Cr.P.C. assailing the order dated
16.6.2010 passed by learned Judicial Magistrate, 3rd Court, Tamluk, Purba
Medinipur, whereby learned Magistrate rejected the petition dated
2
27.11.2009
under Section 205 of the Cr.P.C. praying for dispensing their
personal attendance in the case.
Perused the impugned order and the revisional application.
It is submitted by learned advocates for petitioners that petitioner
no. 1 is aged about 93 years and the petitioner no. 2 is a lady now aged
about 81 years. Due to their old age and ailments, it was not possible for
them to appear before the Court on all dates fixed for hearing and trial.
Accordingly, they had prayed for exemption from their regular
appearance before the Court under Section 205 of the Criminal Procedure
Code. It is submitted that learned Magistrate did not apply his mind and
without considering the circumstances under which the petitioners made
such application has arbitrarily rejected the application on the ground
that they were being tried for offence involving moral turpitude,
punishable with long imprisonment.
Learned advocates for the petitioners in support of his case relied
upon a decision of this Hon'ble Court in the case of M/s. G.K.W. Ltd. &
Anr. Vs. The State of West Bengal & Anr. reported in (2016) 4 C.Cr.LR
(Cal) 577. In that case, learned Single Judge of this Court had observed
that "bearing in mind the nature of the offence and facts that the
petitioner no. 2 is a busy official, his personal appearance may be
dispensed with and he may be permitted to represent through his
learned Counsel under Section 205 of the CPC on condition that he shall
furnish an affidavit that he shall not challenge his identity during trial or
raise any prejudice with regard to the trial being conducted in presence
of his learned advocates and that he shall appear before the learned trial
Court as and when called for by the said Court in the interest of justice".
It is urged that the impugned order suffers from illegality and
irrationality and the same may be set aside.
Heard learned advocates for the State. It is urged on behalf of the
State that the matter is pending for over 10 years and the trial has not
commenced. Learned advocates submitted that the revisional application
may be disposed of on its merit and directions may be given to the
learned Magistrate to dispose of the case as early as possible.
Perused the materials in record and the impugned order.
Considered the submissions made by learned advocates for both the
parties. Undisputedly, the offence involved in this case is under Section
420/406/467/468/506 of the IPC, which are grave in nature. It goes
without saying that the petitioners are octogenarian and nonagenarian
persons who have submitted themselves to the proceedings of the Court.
The only question here is whether the petitioners of such advanced age
should be asked to attend the Court on regular basis unless their presence
becomes essential during charge and trial.
In my considered view, at the time when the application was
considered by the Court, the petitioners were younger by 10 years. With
passage of time the ground of their being of advanced age has
aggrandized. The object of section 205 of Cr. P.C is to accommodation
such circumstances. Through the fact situation in the decision cited on
behalf of the petitioners can be distinguished from the facts of this case,
the principle, for dispensing of personal attendance is applicable herein.
Considering all these aspects, I am of the opinion that the learned
Magistrate by refusing to grant the prayer dispensing their personal
attendance under Section 205 of the Cr.P.C. has committed error of law.
The impugned order is therefore set aside.
It is being hereby directed that the personal attendance of the
petitioners shall be dispensed with on their filing affidavits before the
Court that they shall be represented by their counsel on dates fixed for
trial and furthermore, the petitioners shall appear before the Court as and
when necessary and directed, that is at the time of framing charge in
course of trial, their examination under Section 313 of the Cr. P.C. and at
the time of pronouncing of judgment. The petitioners shall not thereby
challenge their identity or delay the proceeding.
Accordingly, the revisional application is disposed of. All
connected applications with regard to the revision are also disposed of
and interim order stands vacated.
Let a copy of this order be sent to the learned Judicial Magistrate,
3rd Court, Tamluk, Purba Medinipur for his information with a direction
to expedite the trial of the case and dispose of the same preferably within
a period of six months from the receipt of this order.
Department shall send a copy of the order to the concerned court at
once.
(Ananda Kumar Mukherjee, J.)
