SRI RAMESHWAR YADAV & ORS. versus THE STATE OF BIHAR & ANR. on 16 March 2018

SRI RAMESHWAR YADAV & ORS.

v.

THE STATE OF BIHAR & ANR.

(Criminal Appeal No. 387 of 2018)

MARCH 16, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Criminal Procedure, 1973 – ss. 205 and 482 –Second respondent filed complaint against her husband and theaccused-appellants (parents-in-law and two others) u/s. 498A IPCand s.4 of the Dowry Prohibition Act – Magistrate summoned theaccused-appellants as well as the husband of the complainant-second respondent – Accused-appellants filed application todispense with their physical appearance in the case – Applicationrejected by the Magistrate u/s. 205 – Order of the Magistratechallenged u/s.482 before the High Court, which was dismissed –On appeal, held: The observation of the High Court that theaccused-appellants have filed application u/s. 205 at a subsequentstage after appearing before the Court is factually incorrect –Application u/s. 205 was filed by the accused-appellants prior tothe appearance in the Court – The grant of exemption from personalappearance in the Court on each and every date was required to beconsidered in view of the fact that application was filed much beforetheir appearance in the Court – Further, Magistrate had not rejectedthe application on the ground that application is not entertainableafter appearance of the accused-appellants before the Court – Theviews of the High Court for rejecting the application were unfounded– On the other hand Magistrate also, while rejecting the application,failed to consider the actual grounds given by the accused-appellants for seeking exemption – In application the grounds werethat appellant no.1, father of complainant’s husband, appellant no.2(wife of appellant no. 1), appellant no.3 and 4 were residing atPune – The distance between residence of the accused-appellantsand the place of trial at Patna is 1750 kms – Taking intoconsideration the entire facts and circumstances and the groundstaken by the appellants in their application u/s. 205 and s.482,sufficient grounds were made out for granting exemption from

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Apersonal appearance of the accused-appellants in the trial – PenalCode, 1860 – s. 498-A – Dowry Prohibition Act, 1961 – s.4.

Allowing the appeal, the Court

HELD: 1. The observation of the High Court that theaccused has filed application under Section 205Cr.P.C. at aBsubsequent stage after appearing before the court is factuallyincorrect. The application was filed by the accused under Section205 Cr.P.C. on 17.01.2013. Thus, the application under Section205Cr.P.C. was filed prior to the appearance in the court and thesame would have very well been considered by the MagistrateCdespite their appearance in the court after obtaining the pre-arrestbail. The grant of exemption from personal appearance in thecourt on each and every date was required to be considered inview of the fact that application was filed on 17.01.2013 muchbefore their appearance in the court. Further, the Magistrate hadnot rejected the application on the ground that application is notDentertainable after appearance of the accused before the court.Thus, the aforesaid ground given by the High Court for rejectingthe application is unfounded. [Para 10] [1060-H; 1061-A-C]

2. There is one more reason due to which the High Court’sorder cannot be sustained. The High Court in its order observedEthat there is another provision that is Section 317 Cr.P.C. whichgives discretion to the court to exempt a person from personalappearance. The High Court observed that the remedy availableto the accused was under Section 317 Cr.P.C. and notunder Section 205 Cr.P.C. Section 317 Cr.P.C. empowers theFMagistrate, at any stage of inquiry or trial for reasons to berecorded to exempt attendance of the accused. There is noimpediment in the power of the Magistrate to consider theapplication of accused for their exemption from personalappearance. [Paras 10, 11] [1061-C-E]

G3. Now, adverting to the reasons given by the Magistratefor rejecting the application. First reason given by the Magistrateis that all the accused appear hale and hearty and there is nosuffering from any type of disease which may be impediment inappearing before the court. Application was not filed by theaccused on the ground that they suffer from any physical illnessHand hence the said reason given by the Magistrate is wholly out SRI RAMESHWAR YADAV & ORS. v. THE STATE OF BIHAR &ANR.

of place. The second reason is that accused and complainantshould be present before the court on each and every dateexpecting good sense prevail between them. This is not a validground for not considering actual grounds given by the accusedfor seeking exemption. Third ground given was regardingconciliation which requires the appearance of the accuseddesirable. With regard to this ground it is sufficient to notice thatapplication under Section 482 Cr.P.C. was not filed by the husbandof complainant whose pre-arrest bail was already rejected. Theappellants, thus, were not pressing application under Section482 Cr.P.C. for husband of complainant who could have very wellparticipated in the proceedings. Thus, the above ground was alsonot available for rejection of the application. [Paras 12, 13] [1061-F-H; 1062-A-B]

4. In the application the grounds which were given by theappellants was that, appellant No.1 husband of complainant isretired Army personnel and residing in Pune with his wife that isappellant No.2. Appellant Nos.3 and 4 were also residing at Pune.Husband of complainant was working at Hyderabad. TheMagistrate has not considered the grounds which were taken bythe appellants for seeking exemption. It was on the record beforethe High Court that distance between residence of the accusedand the place of trial at Patna is 1750 kms. It was further statedthat appellant No.3 was a business man and running Company inPune and appellant No.4 was a student of BCA in Pune. Takinginto consideration the entire facts and circumstances and thegrounds taken by the appellants in their application under Section205 Cr.P.C. as well as in the application under Section 482 Cr.P.C.filed before the High Court, sufficient grounds were made outfor granting exemption from personal appearance of theappellants in the trial. The Magistrate committed error in notadverting to the grounds taken for praying the exemption andrejected the application on the reasons which were unfounded.The Magistrate under Section 205 sub-Section (2) Cr.P.C. isempowered at any stage to direct personal appearance of theaccused hence as and when personal appearance of the accusedis required the Magistrate is empowered to issue necessaryorders if so decides. [Para 13] [1062-B-E]

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[2018] 4 S.C.R.

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 387 of 2018.

From the Judgment and Order dated 17.04.2017 of the High Courtof Judicature at Patna in Criminal Misc. No. 42524 of 2013.

Rakesh Kumar, Adv. for the Appellants.B

Ms. Abha R. Sharma, Abdullah, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filed againstthe judgment dated 17.04.2017 of the Patna High Court by whichCjudgment application filed by the accused-appellants under Section 482of the Code of Criminal Procedure challenging the order dated 13.08.2013passed by the Sub- Divisional Judicial Magistrate, Patna has beendismissed by the High Court.

2. Brief facts necessary to be noted for deciding the appeal are:DThe second respondent filed a complaint in the Court of Sub-DivisionalJudicial Magistrate, Patna alleging offence committed by the accusedas well as Arnesh Kumar, her husband. The Magistrate vide order dated11.10.2012 finding a prima facie case under Section 498A IPC and Section4 of the Dowry Prohibition Act summoned the accused as well as ArneshEKumar, husband of the complainant. The accused as well as ArneshKumar filed an application for anticipatory bail during the pendency ofthe said application. Non-bailable warrants were issued by the Magistrateon 23.12.2012. All the accused that is appellants as well as Arnesh Kumarfiled an application dated 17.01.2013 praying for recall of non- bailablewarrant and dispensing with their physical appearance in the case. ItFwas appellants’ case that said application was filed because appellantNo.1, father of Arnesh Kumar is a retired Army Official residing inPune with appellant No.2 and other appellants were also residents ofPune, Maharashtra and they have to come from a distance. It was prayedby the accused that they be exempted from the personal appearance inGthe case. All the accused except Arnesh Kumar, husband of complainantwere granted anticipatory bail. Anticipatory bail was granted by theDistrict and Sessions Judge, Patna on 21.06.2013 to all the accusedexcept Arnesh Kumar, husband of the complainant. The Sub-DivisionalMagistrate by order dated 13.08.2013 rejected the application filed bythe accused under Section 205 Cr.P.C.H

3. While rejecting the application on 13.08.2013, the Magistrategave the following reasons:

(i) Petitioners appear to be hale and hearty and are notsuffering from any type of disease which may be impediment inappearing before the court.

(ii) Nature of offences requires that accused-petitionersand also the complainant should be present before the courtpreferably on each and every date expecting good sense prevailsupon them.

(iii) Their appearance is also desirable for the purpose ofconciliation since the very enactment of Section 498A of IPCand Dowry Prohibition Act primarily meant for restoration ofconjugal harmony.

4. Challenging the order dated 13.08.2013, an application underSection 482 Cr.P.C. was filed which has been dismissed by the PatnaHigh Court. The High Court dismissed the application taking a new groundthat a prayer for exemption from personal appearance under Section205 Cr.P.C. can only be made at the stage of first appearance of theaccused. Once the accused appears before the court in person withoutmaking any application for dispensing with the personal appearance underSection 205 Cr.P.C., at a subsequent stage, such an application wouldnot be maintainable. Aggrieved by the said order this appeal has beenfiled.

5. We have considered the submissions of the learned counsel forthe parties and perused the records.

6. Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevantin this case are extracted:

“Section 205. Magistrate may dispense with personalattendance of accused.— (1) Whenever a Magistrate issuesa summons, he may, if he sees reason so to do, dispense with thepersonal attendance of the accused and permit him to appear byhis pleader.

(2) But the Magistrate inquiring into or trying the case may, inhis discretion, at any stage of the proceedings, direct the personalattendance of the accused, and, if necessary, enforce suchattendance in the manner hereinbefore provided.

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317. Provision for inquiries and trial being held in theabsence of accused in certain cases.—(1) At any stage ofan inquiry or trial under this Code, if the Judge or Magistrate issatisfied, for reasons to be recorded, that the personal attendanceof the accused before the Court is not necessary in the interestsof justice, or that the accused persistently disturbs the proceedingsin Court, the Judge or Magistrate may, if the accused isrepresented by a pleader, dispense with his attendance andproceed with such inquiry or trial in his absence, and may, at anysubsequent stage of the proceedings, direct the personalattendance of such accused.

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(2) If the accused in any such case is not represented by a pleader,or if the Judge or Magistrate considers his personal attendancenecessary, he may, if he thinks fit and for reasons to be recordedby him, either adjourn such inquiry or trial, or order that the caseof such accused be taken up or tried separately.”

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7. The Magistrate has rejected the application filed under Section205 Cr.P.C. on different grounds as noticed above. The High Court tookentirely new grounds for dismissing the application filed under Section482 Cr.P.C. without adverting to the grounds which were taken by theMagistrate for declining the prayer.

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8. We first take up the grounds given by the High Court for rejectingthe application. The High Court has observed that prayer for exemptionfrom personal appearance under Section 205 Cr.P.C. can only be madeat the stage of first appearance of the accused and once the accusedappears before the court in person without making any application forFdispensing with the personal appearance under Section 205 Cr.P.C. at asubsequent stage, such an application would not be maintainable.

9. The High Court has noticed that the accused had alreadyappeared after obtaining the order of pre-arrest bail and furnishing bondand sureties to the satisfaction of the court. The pre-arrest bail wasGgranted to the accused by the District and Sessions Judge by order dated21.06.2013 and thereafter the accused appeared before the court as hasbeen noticed in paragraph 8 of the judgment of the High court itself.

10. The observation of the High Court that the accused has filedapplication under Section 205 Cr.P.C. at a subsequent stage afterappearing before the court is factually incorrect. The application was H

filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, theapplication under Section 205 Cr.P.C. was filed prior to the appearancein the court and the same would have very well been considered by theMagistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in thecourt on each and every date was required to be considered in view ofthe fact that application was filed on 17.01.2013 much before theirappearance in the court. Further, the Magistrate had not rejected theapplication on the ground that application is not entertainable afterappearance of the accused before the court. We, thus, are of the viewthat aforesaid ground given by the High Court for rejecting the applicationis unfounded. There is one more reason due to which the High Court’sorder cannot be sustained.

11. The High Court in its order observed that there is anotherprovision that is Section 317 Cr.P.C. which gives discretion to the courtto exempt a person from personal appearance. The High Court observedthat the remedy available to the accused was under Section 317 Cr.P.C.and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowersthe Magistrate, at any stage of inquiry or trial for reasons to be recordedto exempt attendance of the accused. The Magistrate was not powerlessto consider the prayer under Section 317 Cr.P.C. as per the view takenby the High Court. Thus, we do not find any impediment in the power ofthe Magistrate to consider the application of accused for their exemptionfrom personal appearance.

12. Now, we advert to the reasons given by the Magistrate forrejecting the application. As noticed above, first reason given by theMagistrate is that all the accused appear hale and hearty and there is nosuffering from any type of disease which may be impediment in appearingbefore the court. Application was not filed by the accused on the groundthat they suffer from any physical illness and hence the said reasongiven by the Magistrate is wholly out of place. The second reason is thataccused and complainant should be present before the court on eachand every date expecting good sense prevail between them. We fail tosee this as any valid ground for not considering actual grounds given bythe accused for seeking exemption. Third ground given was regardingconciliation which requires the appearance of the accused desirable.

13. With regard to this ground it is sufficient to notice that applicationunder Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar A

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Awhose pre-arrest bail was already rejected. The present appellants, thus,were not pressing application under Section 482 Cr.P.C. for ArneshKumar, the husband who could have very well participated in theproceedings. Thus, the above ground was also not available for rejectionof the application. In the application the grounds which were given bythe appellants was that, appellant No.1 father of Arnesh Kumar is retiredBArmy personnel and residing in Pune with his wife that is appellant No.2.Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, thehusband was working at Hyderabad. The Magistrate has not consideredthe grounds which were taken by the appellants for seeking exemption.It was on the record before the High Court that distance betweenCresidence of the accused and the place of trial at Patna is 1750 kms. Itwas further stated that appellant No.3, Ashok Kumar Yadav was abusiness man and running Company in Pune and appellant No.4 was astudent of BCA in Pune. Taking into consideration the entire facts andcircumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under SectionD482 Cr.P.C. filed before the High Court, we are of the view that sufficientgrounds were made out for granting exemption from personal appearanceof the appellants in the trial. The Magistrate committed error in notadverting to the grounds taken for praying the exemption and rejectedthe application on the reasons which were unfounded. The MagistrateEunder Section 205 sub-Section (2) Cr.P.C. is empowered at any stage todirect personal appearance of the accused hence as and when personalappearance of the accused is required the Magistrate is empowered toissue necessary orders if so decides.

14. In the result, the appeal is allowed, the judgment and order of Fthe High Court dated 17.04.2017 as well as order of the Sub- DivisionalJudicial Magistrate dated 13.08.2013 are set aside, application filed bythe appellants under Section 205 Cr.P.C. is allowed. The personalappearance of the appellants is exempted. This, however, shall notpreclude the Magistrate to pass appropriate orders under Section 205(2)Cr.P.C. if and when personal appearance of the appellants is required.G

Ankit Gyan Appeal allowed.

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