Jharkhand High Court
Manoj Kumar Agarwal vs The State Of Jharkhand on 13 October, 2022
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 3232 of 2022
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1.Manoj Kumar Agarwal, aged about 53 years, son of Mahadeo Prasad,
resident of 7 Iron Side Road, Ballygunge, PO Ballyguge, P.S. Ballygunge,
District Kolkata (West Bengal)
2.Nirmal Kumar Agarwal, aged about 60 years, son of Mahadeo Prasad
Agarwal, resident of Ashoka Road,Flat No.4C, Alipore, P.O. Alipore,
P.S.Alipore, District Kolkata (West Bengal) ..... Petitioners
-- Versus --
The State of Jharkhand ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Indrajit Sinha, Advocate
For the State :- Mr. Abhay Kumar Tiwari, Advocate
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2/13.10.2022 Heard Mr. Indrajit Sinha, learned counsel for petitioners and
Mr. Abhay Kumar Tiwari, learned counsel appearing for respondent State.
2. This petition has been filed for quashing of the order dated
12.08.2022 passed by learned Chief Judicial Magistrate, Saraikella in
C.C.No.93 of 2022, in MCRA Case No.1192 of 2022 and MCRA Case
No.1193 of 2022 whereby the learned court has dismissed the petition
filed under section 205 Cr.P.C, pending in the court of learned Chief
Judicial Magistrate, Saraikella.
3. Mr. Sinha, learned counsel for petitioners submits that
petitioner no.1 is Manager of M/s Adhunik Power and Natural Resources
Limited and petitioner no.2 is Occupier of the said company. He submits
that cognizance has been taken under section 92 and 96A of Factories
Act. He submits that after receiving summons, petitioner has filed
petition under section 205 Cr.P.C which has been rejected by respective
order by the learned court on the ground that the petitioners are
travelling in India and outside of India for business purposes and they
have not appeared and in that view of the matter, petition filed under
section 205 Cr.P.C has been rejected. He submits that Bhaskar
Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Others,
(2001) 7 SCC 401 has not been rightly considered by learned court
particularly paragraph no.14 of the said judgment.
4. He further submits that in the case of Bhaskar Industries
Ltd.(supra) the Hon'ble Supreme Court has considered about recording
of the evidence in presence of the accused at paragraph no.14 of the
said judgment, and after referring to section 205 Cr.P.C., the Hon'ble
Supreme Court has held that it is within the powers of the learned
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:
paragraph no.14 of the said judgment is quoted hereinbelow:
14. The normal rule is that the evidence shall be
taken in the presence of the accused. However, even in the
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 person may have to bear with in order to make
himself present in the court in that particular case.
5. The purpose of exemption under section 205 Cr.P.C is that
the order of the learned Magistrate should be such which does not make
any unnecessary harassment to the accused and at the same time does
not cause any prejudice to the complainant and the learned court is
required to ensure that exemption from personal appearance granted to
the accused is not an abuse or delay the trial.
6. Mr. Abhay Kumar Tiwari, learned counsel for respondent
State submits that exhaustive order has been passed and there is no
illegality in the impugned order.
7. In view of the above facts and submission of the learned
counsel appearing for the parties, the Court has gone through the
materials on record and finds that petitioners are responsible persons of
the company against whom allegation with regard to Factories Act is
made. Section 205 Cr.P.C was the subject matter in the case of Puneet
Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12
SCC 695.
8. In view of the above facts and the reasons and the analysis
and also considering the facts and circumstances of the present case,
order dated 12.08.2022 passed by learned Chief Judicial Magistrate,
Saraikella in C.C.No.93 of 2022, in MCRA Case No.1192 of 2022 and
MCRA Case No.1193 of 2022 whereby the learned court has dismissed
the petition filed under section 205 Cr.P.C, pending in the court of learned
Chief Judicial Magistrate, Saraikella, for dispensing with the personal
appearance of the petitioners has been rejected, is set-aside.
9. Consequently, the application submitted by the petitioners
to dispense with the personal appearance before the learned court on all
the dates and adjournment and permitting his counsel to appear on his
behalf is, hereby, allowed on the following conditions:
(i) The petitioner shall give an undertaking to the learned trial
court that he will not dispute his identity in his case and
that the name of the learned Advocate representing him
before the learned court will be disclosed before the
learned court and he will be permitted to represent the
petitioner and would appear before the learned trial court
on his behalf on each and every date of hearing and that
he shall not object recording of evidence in his absence and
no adjournment shall be asked on behalf of the petitioner
or his Advocate who will represent the petitioner;
(ii) The petitioner shall appear before the learned court for the
purpose of substance or framing of charge as the case may
be and also on the hearing dates whenever the learned trial
court insists for his appearance;
(iii) There will not be failure on the part of the Advocate of the
petitioner who will represent the petitioner either to appear
before the learned court on each adjournment or any
adjournment sought on behalf of the petitioner and if the
learned trial court comes to the conclusion that the
petitioner or his advocate is trying to delay the trial in that
case, it would be upon the learned court to exercise its
power under sub section 2 of section 205 Cr.P.C and direct
the appearance of the petitioner on each and every date of
adjournment; and
(iv) The petitioners are directed to file undertaking on affidavit
in light of the above directions before the learned trial court
forthwith.
10. Cr.M.P. No.3232 of 2022 stands allowed and disposed of.
11. I.A. if any stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
