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Section 205 Cr.P.C. petition is discretionary jurisdiction of the learned Court but should not be misused: Jharkhand High Court

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The purpose of exemption under Section 205 Cr.P.C is that the order of the learned Magistrate should be one that 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.

The Jharkhand High Court made the above noting while disposing of a Petition  filed for quashing the order  passed by the  Chief Judicial Magistrate, Garhwa in connection with Complaint Case whereby, the petition filed by the petitioners under Section 205 Cr.P.C. has been rejected.

The complaint case was filed alleging therein the petitioners came to the office of the complainant (respondent no.2) at Garhwa in last week of October, 2012 and told that they are proprietors of a Limited and their main office is at Kolkata. The petitioners stated that their cement asbestos sheets are not selling and they offered and requested the respondent no.2 to sell  asbestos sheet in his market and help them in their business. 

It was further alleged that believing on that statement, respondent no.2 accepted their offer and  upon making payment purchased asbestos sheet for Rs.23,90,412/- during financial year 2012-13 .It was also alleged that respondent no.2 met several times with the accused/petitioners for settlement of his claim with respect to damaged sheets, however, they refused to settle his claim and stopped talking to him.

Respondent no.2 has alleged that the petitioners have deliberately and fraudulently cheated him and by giving false assurance the petitioners have embezzled his Rs.22.50 Lacs and despite notice issued by him, the money was not paid in order to hurt the honour of the respondent no.2. Respondent no.2 also alleged that he went to Garhwa Police Station, but they did not act on his complaint and, therefore, the said complaint case was filed.

Ajay Kumar Sah , counsel for the petitioners submits that the matter is arising out of commercial dispute between the parties. He further submits that the allegations are made that cement asbestos sheets were sold  in the year 2012-13 and 2013-14 respectively.

He submits that however purported ante-dated manufactured letter dated 05.05.2018 has been relied upon by the respondent no.2, which has been addressed to the petitioners. He submits that for belated claim, if any, the complaint case has been filed for recovery. He further submits that the petitioners are not avoiding appearance before the  Court. The petitioners have bonafidely filed a petition under Section 205 Cr.P.C. for dispensing with their personal appearance as they are busy with the work of the company. He also submits that the petitioners are ready to comply with any directions of this Court as well as the law laid down by the  Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and others, reported in [(2001) 7 SCC 401]. On these grounds, he submits that the impugned order may kindly be modified as the petitioners are ready to give undertaking before the Court that they will not hide their identity and on each and every date, the lawyer appointed by the petitioners shall appear before the Court.

Vineet Kumar Vashistha ,  counsel for the State submits that although the petition under Section 205 Cr.P.C. for dispensing with the personal appearance of the petitioners is there before the learned Court, however, such power is required to be exercised by the learned Court with circumspection. He submits that the case is arising out of warrant trial case and in view of that, the learned Court has rightly passed the impugned order.  

In view of the submissions of the counsel for the parties, the Bench of Justice Sanjay Kumar Dwivedi noted that the case is arising out of commercial dispute and for that complaint case has been filed. “There is no doubt that Section 205 Cr.P.C. petition is discretionary jurisdiction of the learned Court, however, at the same time, the said order is required to be considered in view of the fact that unnecessary harassment should not be there to the accused.” The petitioners are higher officials of the company and they are engaged in several work of the company.  

Recording of the evidence in presence of the accused is one of the requirement under the Cr.P.C. and if the progress of 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. This aspect of the matter has been considered by the  Supreme Court in the case of Bhaskar Industries Ltd. (supra) at paragraph 14 of the said judgment, which reads as under:  

“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.”  

In appropriate cases, the Courts are allowing the petitions under Section 205 Cr.P.C. In the case in hand, the Bench noted that the petitioners are responsible persons of the company against whom allegations are made. This aspect of the matter was further considered by the Supreme Court in the case of Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, reported in [(2020) 12 SCC 695].  

The High Court set aside the order and allowed the application submitted by the petitioners to dispense with the personal appearance before the Court on all the dates and adjournment and permitting his counsel to appear on his behalf.

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