PUNEET DALMIA versus CENTRAL BUREAU OF INVESTIGATION, HYDERABAD on 16 December 2019

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 10.09.2018 passed by the High Court for the State ofTelangana and the State of Andhra Pradesh at Hyderabad in CriminalPetition No. 3880 of 2016, by which the High Court has dismissed thesaid application and has rejected the prayer of the appellant fordispensation with his personal appearance/attendance in a case thatpertains to the charge-sheet bearing C.C. No. 12 of 2013, one of theoriginal accused in the aforesaid case has preferred the present appeal.

3. That the appellant is accused No. 3 in the case pertaining to thecharge-sheet bearing C.C. No. 12 of 2013 pending before the learnedPrincipal Special Judge for CBI Cases, Hyderabad. That the appellantwas summoned by the learned Trial Court vide order dated 13.05.2013for the offences punishable under Sections 120-B read with Sections420, 409 IPC and Sections 9, 12, 13(2) read with 13(1)(c) and (s) 12 ofthe Prevention of Corruption Act. That, by an order dated 07.06.2019the appellant has been granted the bail. However, pursuant to thedirections issued by the High Court, the appellant is required to attendthe learned Trial Court on every Friday. It is the case on behalf of theappellant-original accused No. 3 that since 2013 the appellant has beenremaining present before the learned Trial Court on every Friday.

3.1 That the appellant submitted an application before the learnedTrial Court under Section 205 of the Cr.P.C. for dispensing with hispersonal appearance/attendance. It was submitted on behalf of theappellant that he is the Director on the boards of several companies andis pre-occupied with the management and attending day-to-day affairson account of business exigencies of the companies. It was also submittedon behalf of the appellant that for attending the learned Trial Court onevery Friday, he is required to travel from Delhi to Hyderabad spendingnot less than two days. Therefore, it was the case on behalf of theappellant that on account of posting the case on every Friday, he hasbeen facing undue hardship in meeting his business commitments, inaddition to continuous financial loss being caused to him. Therefore, itwas prayed to dispense with his appearance permitting his counsel SriBharadwaj Reddy to appear on his behalf.

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A3.2 The said application was opposed by the respondent-CBI. Itwas submitted on behalf of the CBI that the grounds on which the appellanthas requested to dispense with his appearance before the learned TrialCourt are not germane and cannot be a ground to dispense with hisappearance before the learned Trial Court under Section 205 Cr.P.C. Itwas also contended on behalf of the CBI that the appellant is facingBvery serious charges/offences. The learned Principal Special Judge forCBI Cases, Hyderabad dismissed the said application. Aggrieved by theorder passed by the learned Trial Court, the appellant preferred a petitionbefore the High Court. By the impugned judgment and order, the HighCourt has dismissed the said petition and has confirmed the order passedCby the learned Trial Court rejecting the application submitted by theappellant and has refused the exemption from personal appearance ofthe appellant before the learned Trial Court. Hence, the present appeal.

4. Shri Mukul Rohatgi and Shri Neeraj Kishan Kaul, learned SeniorAdvocates appearing on behalf of the appellant have vehementlyDsubmitted that, in the facts and circumstances of the case, the HighCourt as well as the learned Trial Court have committed a grave error innot allowing the application submitted by the appellant from exemptinghim to appear before the learned Trial Court on every Friday.

4.1 It is vehemently submitted by the learned Senior AdvocatesEappearing on behalf of the appellant that since 2013, on every Friday, theappellant is attending the learned Trial Court and the charge-sheet isalready filed. It is submitted that the trial is not likely to be concluded atthe earliest as 13 charge-sheets are filed in this case arising out of thesame FIR and there are number of accused. It is submitted that theappellant is ready and willing to file an undertaking that non-appearanceFof the appellant before the learned Trial Court, on the exemption beinggranted, shall not come in the way of proceeding with the trial and thathe shall appear through advocate and that he has no objection if theevidence is recorded in his absence. It is submitted on behalf of theappellant that he shall remain present before the Court as and whenGrequired and ordered by the learned Trial Court. It is further submittedon behalf of the appellant that he is ready and willing to abide by anyother conditions which may be imposed by this Court and which maydeem fit and proper.

4.2 It is further submitted by the learned Counsel appearing onHbehalf of the appellant that in fact the learned Trial Court has already granted permanent exemption from personal appearance to two of theaccused persons in cases arising out of the same FIR and on the groundof their business commitments, though in fact both of them are based atHyderabad only.

4.3 The learned counsel appearing on behalf of the appellant hasalso relied upon the decisions of this Court in Bhaskar Industries Ltd.V. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401 and RameshwarYadav V. State of Bihar (2018) 4 SCC 608 in support of the prayer todispense with the presence of the appellant before the learned TrialCourt on every Friday.

4.4 Making the above submissions and relying upon the abovedecisions of this Court, it is prayed to allow the present appeal andconsequently allow the application submitted by the appellant fordispensation with his personal appearance before the learned Trial Court.

5. The present appeal is vehemently opposed by Shri VikramjitBanerjee, learned ASG appearing on behalf of the respondent-CBI.

5.1 It is vehemently submitted by Shri Banerjee, learned ASGappearing on behalf of the respondent-CBI that, as rightly held by thelearned Trial Court as well as the High Court, the grounds on which theappellant has requested to dispense with his personal appearance, namely,on account of business commitments and pre-occupation in connectionwith his business activities and inconvenience being caused to theappellant to appear before the learned Trial Court, are not valid groundsfor allowing the application under Section 205 Cr.P.C.

5.2 It is further submitted by Shri Banerjee, learned ASG that infact the High Court has specifically observed that if the appellant isexempted from personal appearance before the learned Trial Court, inthat case, after such an exemption is granted, he may not co-operate inproceeding further with the trial and that the trial will be delayed. It issubmitted that the appellant-accused and others are involved in the graveoffences causing dent to the economy of the State and affecting theeconomy of the country. It is submitted that, therefore, the trial is requiredto be concluded at the earliest. It is submitted that in the impugnedjudgment and order the High Court has specifically observed andconsidered the conduct on the part of the appellant as well as the otheraccused causing delay in concluding the trial. It is therefore submittedthat no case is made out to exempt the appellant from appearing beforethe learned Trial Court.

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A5.3 Now, so far as the reliance placed by the learned counselappearing on behalf of the appellant upon the decisions of this Court inBhaskar Industries Ltd. (supra) and Rameshwar Yadav (supra) isconcerned, it is submitted by the learned ASG that the said decisionsshall not be applicable to the facts of the case on hand looking to thegraveness and seriousness of the offences involved. It is submitted thatBin Bhaskar Industries Ltd. (supra), it was a case for the offence underSection 138 of the Negotiable Instruments Act and in Rameshwar Yadav(supra), it was a case for the offences under Section 498-A IPC andSection 4 of the Dowry Prohibition Act. It is submitted that, in the presentcase, the allegations against the appellant are for the offences punishableunder Sections 120-B read with Sections 420 and 409 IPC and SectionsC9, 12, 13(2) read with Sections 13(1)(c) and (d) of the Prevention ofCorruption Act. Therefore, it is prayed to dismiss the present appeal.

6. Heard learned Counsel appearing on behalf of the respectiveparties at length. At the outset, it is required to be noted that the appellantis required to appear before the learned Trial Court on every Friday andDthe appellant as such is appearing before the learned Trial Court on eachand every Friday since 2013. Nothing is on record that at any point oftime the appellant has tried to delay the trial. The appellant is representedthrough his counsel. The appellant is a permanent resident of Delhi. Heis the Director on the Boards of several companies. The distance betweenEDelhi and Hyderabad is approximately 1500 kms. Therefore, the appellantsought for exemption from personal appearance before the learned TrialCourt on each and every Friday and submitted the application underSection 205 Cr.P.C. and submitted that on all dates of adjournments, hiscounsel Sri Bharadwaj Reddy shall appear and no adjournment shall beasked for on his behalf. In the cases of Bhaskar Industries Ltd. (supra)Fand Rameshwar Yadav (supra), this Court had the occasion to considerthe scope and ambit of the application under Section 205 Cr.P.C. In thecase of Bhaskar Industries Ltd. (supra), this Court has observed thatif a Court is satisfied that in the interest of justice the personal attendanceof an accused before it need not be insisted on, then the court has theGpower to dispense with the attendance of the accused. It is furtherobserved by this Court in the aforesaid decision that if a court feels thatinsisting on the personal attendance of an accused in a peculiar casewould be too harsh on account of a variety of reasons, the court cangrant relief to such an accused in the matter of facing the prosecutionproceedings. It is observed and held by this Court in the aforesaid decisionHthat 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 evidencecan be taken but then his counsel must be present in the court, providedhe has been granted exemption from attending the court. In Paragraphs14, 17, 18 and 19, this Court has observed and held as under:

“14. The normal rule is that the evidence shall be taken in thepresence of the accused. However, even in the absence of theaccused such evidence can be taken but then his counsel must bepresent in the court, provided he has been granted exemption fromattending the court. The concern of the criminal court shouldprimarily be the administration of criminal justice. For that purposethe proceedings of the court in the case should register progress.Presence of the accused in the court is not for marking hisattendance just for the sake of seeing him in the court. It is toenable the court to proceed with the trial. If the progress of thetrial can be achieved even in the absence of the accused thecourt can certainly take into account the magnitude of thesufferings which a particular accused person may have to bearwith in order to make himself present in the court in that particularcase.

17. Thus, in appropriate cases the Magistrate can allow anaccused to make even the first appearance through a counsel.The Magistrate is empowered to record the plea of the accusedeven when his counsel makes such plea on behalf of the accusedin a case where the personal appearance of the accused isdispensed with. Section 317 of the Code has to be viewed in theabove perspective as it empowers the court to dispense with thepersonal attendance of the accused (provided he is representedby a counsel in that case) even for proceeding with the furthersteps in the case. However, one precaution which the court shouldtake in such a situation is that the said benefit need be grantedonly to an accused who gives an undertaking to the satisfaction ofthe court that he would not dispute his identity as the particularaccused in the case, and that a counsel on his behalf would bepresent in court and that he has no objection in taking evidence inhis absence. This precaution is necessary for the further progressof the proceedings including examination of the witnesses.

18. A question could legitimately be asked — what mighthappen if the counsel engaged by the accused (whose personalappearance is dispensed with) does not appear or that the counsel A

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Adoes not cooperate in proceeding with the case? We may pointout that the legislature has taken care of such eventualities. Section205(2) says that the Magistrate can in his discretion direct thepersonal attendance of the accused at any stage of theproceedings. The last limb of Section 317(1) confers a discretionon the Magistrate to direct the personal attendance of the accusedBat any subsequent stage of the proceedings. He can even resortto other steps for enforcing such attendance.

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19. The position, therefore, boils down to this: it is within thepowers of a Magistrate and in his judicial discretion to dispensewith the personal appearance of an accused either throughout orCat any particular stage of such proceedings in a summons case, ifthe Magistrate finds that insistence of his personal presence woulditself inflict enormous suffering or tribulations on him, and thecomparative advantage would be less. Such discretion need beexercised only in rare instances where due to the far distance atwhich the accused resides or carries on business or on account ofDany physical or other good reasons the Magistrate feels thatdispensing with the personal attendance of the accused wouldonly be in the interests of justice. However, the Magistrate whogrants such benefit to the accused must take the precautionsenumerated above, as a matter of course. We may reiterate thatEwhen an accused makes an application to a Magistrate throughhis duly authorised counsel praying for affording the benefit of hispersonal presence being dispensed with the Magistrate canconsider all aspects and pass appropriate orders thereon beforeproceeding further.”

FIt is true that in the aforesaid two cases before this Court, theoffences alleged were less serious offences than alleged in the presentcase. However, the principles for grant of exemption as observed bythis Court in the case of Bhaskar Industries Ltd. (supra) can be madeapplicable to the facts of the case on hand also and the appellant can begranted the exemption on certain conditions and on filing an undertakingGby the appellant, by which the interest of justice can be protected andgrant of exemption may not ultimately affect the conclusion of the trialat the earliest. At this stage, it is required to be noted that nothing is onrecord that, at any point of time, any effort has been made by the appellantto stall/delay the trial. At this stage, it is required to be noted that in caseof other two co-accused in cases arising of the same FIR, the applicationsH

for exemption on the very same grounds have been allowed – one bythe High Court and another by the learned Trial Court.

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7. In view of the above and for the reasons stated above andconsidering the facts and circumstances of the case, the present appealis allowed. The impugned Judgment and order passed by the High Courtas well as that of the learned Trial Court rejecting the applicationsubmitted by the appellant under Section 205 Cr.P.C. are hereby quashedand set aside and consequently the application submitted by the appellantto dispense with his appearance before the learned Trial Court on alldates of adjournments and permitting his counsel Sri Bharadwaj Reddyto appear on his behalf is herby allowed on the following conditions:

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(1) That the appellant shall give an undertaking to the learnedTrial Court that he would not dispute his identity in the caseand that Sri Bharadwaj Reddy-advocate who is permitted torepresent the appellant, would appear before the learned TrialCourt on his behalf on each and every date of hearing andthat he shall not object recording of the evidence in his absenceDand that no adjournment shall be asked for on behalf of theappellant and/or his advocate Sri Bharadwaj Reddy;

(2) That the appellant shall appear before the learned Trial Courtfor the purpose of framing of the charges and also on otherhearing dates whenever the learned Trial Curt insists for hisappearance; E

(3) If there is any failure on the part of the advocate Sri BharadwajReddy, who is to represent the appellant, either to appear beforethe learned Trial Court on each adjournment and/or anyadjournment is sought on behalf of the appellant and/or if thelearned Trial Court is of the opinion that the appellant and/orhis advocate is trying to delay the trial, in that case, it wouldbe open for the learned Trial Court to exercise its powersunder Section 205 (2) Cr.P.C. and direct the appearance ofthe appellant on each and every date of adjournment.

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The present appeal is disposed of in the aforesaid terms.

Divya Pandey

Appeal disposed of.

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