Jharkhand High Court
Arvind Vyas vs Union Of India Through ... on 3 May, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1446 of 2022
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Arvind Vyas .... .... .... Petitioner
Versus
Union of India through Directorate of Enforcement
.... .... .... Opposite Party
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
Mr. Krishna Kumar, Advocate
For the E.D. : Mr. Amit Kumar Das, Advocate
For the State : Mr. Vishwanath Roy, Special P.P.
Order No.04 Dated : 03.05.2023
Petitioner is an accused in ECIR/02/PAT/09/AD for the offence under
Section 4 of Prevention of Money Laundering Act, 2002 (hereinafter referred
to as PMLA) pending in the Court of learned Special Judge, CBI-cum-PMLA,
Ranchi.
2. A petition under Section 317 read with Sections 273 & 205 of the
Cr.P.C. was preferred by the petitioner before the learned Court below which
has been rejected and aggrieved by the order, instant petition has been
preferred.
3. It is submitted by learned counsel on behalf of petitioner that the
charge in this case was framed on 25.09.2012 and during trial out of 45
witnesses, 23 witnesses have been examined.
4. The petitioner is on bail and is resident of Chittorgarh (Rajasthan)
which is at distance of 1600 km and has to incur huge expenses for appearing
in the Court on each and every date. The case is fixed for the evidence of the
prosecution 4-5 times every month which is not only financially draining but
also interferes with personal work and business commitments of the petitioner.
5. The present petition has been filed with an undertaking that he will
not claim prejudice under Section 273 of the Cr.P.C. In similar facts situation,
in order to mitigate the hardship of the petitioner, the Hon'ble Supreme Court
has considered the provision of Section 205 read with Section 317 of the
Cr.P.C. in the case of Puneet Dalmia Versus Central Bureau of Investigation,
Hyderabad; AIR Online 2019 SC 1774, Rameshwar Yadav Versus State of
Bihar; AIR 2018 SC 1435, M/s. Bhaskar Industries Ltd. Versus M/s.
Bhiwani Denim & Apparels Ltd. & Others.
6. Learned counsel on behalf of E.D. has defended the impugned order.
It is submitted that in B.A. No.6284 of 2012 while allowing bail of this
petitioner by order dated 14.09.2012, this Court had inter alia imposed
condition that he shall remain present before the Court below on the date fixed
for hearing of this case and in the event if he wanted to remain absent, he
would take prior permission of the Court. It is submitted that this petitioner
has not come with clean hand in the bail application order passed in B.A.
No.763 of 2011. It is apparent that he is resident of Mumbai and not of
Chittorgarh. He is a man of means and a bullion merchant.
8. Under Section 205 Cr.P.C Magistrate may dispense with personal
attendance of accused. It provides:-
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to
do, dispense with the personal attendance of the accused and permit him to
appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion,
at any stage of the proceedings, direct the personal attendance of the accused,
and, if necessary, enforce such attendance in a manner hereinbefore provided.
9. From the above, the general principle of law is that in a case where
summon has been issued against the accused, the personal appearance of the
accused can be dispensed with and he may appear through his pleader. The
scope and extent of Section 205 Cr.P.C. is limited to the stage of
commencement of proceedings and applied to summons issued by a
Magistrate. So far Section 317 Cr.P.C. is concerned, it was enacted to meet a
special type of case and under certain special circumstances. It has been held
in Puneet Dalmia v. CBI, (2020) 12 SCC 695 that if the Court was satisfied
that in the interest of justice the personal attendance of an accused before it
need not be insisted on, then the Court has the power to dispense with the
attendance of the accused. It has also been observed that if a Court feels that
insisting on the personal attendance of an accused in a peculiar case would be
too harsh on account of a variety of reasons, the Court can grant relief to such
an accused in the matter of facing the prosecution proceedings.. 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.
10. In the present case, trial is a decade past after the framing of
charge, and from the number of witnesses examined, it appears only to have
reached half the way. Petitioner is a resident of Rajasthan and even if the
argument of the learned A.P.P. is accepted that he was working as a bullion
merchant at Mumbai, yet it cannot be denied that making physical appearance
before the trial Court will cause physical and financial hardship to the
petitioner. The petitioner is ready to give undertaking that his counsel will
appear on each and every date on his behalf and he will not claim any
prejudice for the recording of evidence in his absence. The principle of law
that has been laid down in the judgment above mentioned is that personal
appearance can be dispensed with considering the special case of the accused.
Taking into account the stage of trial, place of work and residence of the
accused/petitioner, this Court is of the view that appearance can be dispensed
with.
Under the aforesaid facts and circumstance, the impugned order is set
aside, instant petition is allowed, subject to the condition that the petitioner
will appear through his counsel on each and every date and shall not claim any
prejudice under section 273 Cr.P.C. and will appear before the Court in person
at the stage of Section 313 of the Cr.P.C. and Judgment. He will be precluded
from claiming non- identification before the Court by the witnesses.
(Gautam Kumar Choudhary, J.)
Anit
