Pawan Garg vs Somchai Chaisri Chawala
2014 Latest Caselaw 5475 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 03rd November, 2014

+       CRL.M.C. 4929/2014

PAWAN GARG                                                     ..... Petitioner
                                  Through:   Mr. Varider Sharma with Pawan
                                             Verma, Advocates.

                         versus

SOMCHAI CHAISRI CHAWALA                                        .....Respondent
                  Through:                   None

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

Crl. M.A No.16887/2014 The application is allowed subject to all just exceptions. Accordingly, the application stands disposed of.

Crl. M.C. No.4929/2014

1. The petitioner has filed the present petition under Section 482 of Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) read with Article 227 of Constitution of India assailing the order dated 17.10.2014 passed by learned Additional Sessions Judge-04, Patiala House Courts, New Delhi whereby application seeking cancellation of exemption granted to the petitioner was duly dismissed.

2. The factual matrix of the present case is that the present petitioner had filed Compliant Case No.16/1/12 for the offences under Sections

500/501 IPC before learned Metropolitan Magistrate, Patiala House Courts, New Delhi. Learned Metropolitan Magistrate after recording the pre-summoning evidence summoned the respondent for 09.04.2014 vide order dated 06.12.2013. Against the said order the respondent preferred Criminal Revision No.138/2/14 before learned Additional Sessions Judge-04, Patiala House Courts, New Delhi who vide order dated 25.03.2014 issued notice to the petitioner and granted personal exemption to the respondent. Thereafter, the present petitioner moved an application dated 17.10.2014 for cancellation of personal exemption granted to the respondent which was dismissed by the trial court vide impugned order dated 17.10.2014.

3. Feeling aggrieved by the said order, the petitioner has filed the present petition.

4. Learned counsel for the petitioner urges that the exemption was granted to the respondent on the basis of photocopy of the medical certificate issued by Bangkok Hospital Medical Centre, which was valid for three months i.e. from 15.03.2014 till 14.06.2014. He further submits that Dr. Kiertijai Bhuripanyo in the said medical certificate recommended that in case of 'active disease' the respondent should not travel for three months. However, it was not that the respondent was admitted to the hospital and was in a state of 'active disease' when the said certificate was issued to him. He also submits that while issuing the medical certificate, the doctor had left the column of recommended period of rest as 'blank' signifying that the respondent was not recommended to take any rest.

5. Learned counsel for the petitioner further submits that the trial court erred in dismissing the application seeking cancellation of personal exemption without considering the merits of the case. He also submits that the trial court had erroneously dismissed the application under the impression that respondent had sought exemption from personal appearance before the court of learned Additional Sessions Judge whereas the respondent had sought personal exemption from appearance in Complaint Case No.16/1/12 filed by the present petitioner pending before the court of learned Metropolitan Magistrate.

6. I have carefully considered the submissions made by learned counsel for petitioner and perused the material on record.

7. The respondent filed a revision petition against the order of summoning passed by learned Metropolitan Magistrate and along with the revision petition an application seeking exemption from personal appearance was also moved, which was allowed by learned Metropolitan Magistrate vide order dated 25.03.2014. Thereafter, the petitioner moved an application for cancellation of exemption from personal appearance before the learned Additional Sessions Judge, which was dismissed on the premise that the petitioner sought cancellation of exemption from personal appearance before the revisional court. In fact, the petitioner sought cancellation of exemption from personal appearance before learned trial court. Thus, the matter is remanded back to learned Additional Sessions Judge, Patiala House Courts, New Delhi with the directions to decide the said application afresh after hearing both the parties.

8. With the aforesaid observations, the petition stands disposed of.

(VED PRAKASH VAISH) JUDGE NOVEMBER 03, 2014 hs