Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

Equivalent citations: 2005 (1) BLJR 147

Bench: N Sinha

Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

JUDGMENT

Navin Sinha, J.

1. This order shall dispose of Cr. Misc. No. 29832/2000 preferred by one
Jayant Dang and Cr. Misc. No. 34712/2000 preferred by one Prabhat Ranjan.
Cognizance having been taken against both the petitioners in Complaint Case No.
1558(C) of 1998, both the petitioners preferred application under Section 205,
Cr PC for dispensing with their personal appearance. By an order dated 22.8.2000
passed by the Judicial Magistrate, Patna the prayer for grant of relief under
Section 205, Cr PC has been declined. Thus the petitioners who are impleaded as
accused No. 2 and accused No. 6 respectively in the complaint petition have
approached this Court.

2. The allegations as made out in Complaint Case No. 1558(C) of 1998 for the
purposes of the present application may be stated succinctly. Suffice it to say
that the opposite party as complainant instituted the present complaint based
upon what was originally a commercial interaction by him with regard to taking
of a loan from M/s Escorts Finance Limited, a company registered under the
Indian Companies Act, situated at New Delhi. Both the present petitioners here
are the officers of the said company. The petitioner in the first case is said
to be the Managing Director and the petitioner in the second case is said to be
one of the officers of the company. The complainant alleged that he had applied
for a loan/finance to the company, M/s Escorts Finance Ltd. through its
franchisee A.P. Fin. Leasing (India) Limited situate at Maurya Complex, Patria
for purchase of a car. The latter was the authorised franchisee of the aforesaid
company impleaded as accused No. 1 in the complaint. The opposite party No. 2 in
pursuance of having applied for such loan gave certain post-dated cheques. The
opposite party No. 2 never received the loan amount and requested return of the
postdated cheques alongwith other papers signed by him for grant of loan. The
opposite party No. 2 then obtained a loan from other sources and purchased a
car. The car was allegedly seized by the musclemen at the behest of the
petitioners and others and released only after the opposite party No. 2 was
forced to sign certain cheques. The payments of these cheques was then stopped
by the opposite party. The complainant thus alleged that he was wrongly being
harassed for the loan that he had never taken and money had been realized from
him illegally by fabrication of documents of loan etc. On the basis of
allegations cognizance was taken under Sections 348, 384, 409, 420, 467 and
120-B, IPC.

3. The lower Court records had been summoned earlier by an order dated
3.7.2003 of this Court. The parties thus made their submissions on the basis of
the lower Court record in which the narration of dates and events hereinafter
was not disputed by the Counsel appearing for the parties. Summons were issued
on 2.9.99 to both the petitioners. No service report with regard to the summons
was available on record till 14.12.1999. On 6.1.2000 accused No. 6, the
petitioner in Cr. Misc. No. 34712/2000 entered appearance and filed an
application under Section 205, Cr PC. No service report with regard to summons
sent to the petitioners were still available. At this stage the Court below
proceeded to issue bailable warrant of arrest against the accused No. 2, the
petitioner in Cr. Misc. No. 29832/2000. Having been made aware of the bailable
warrant issued against him the said petitioner entered appearance on 7.3.2000
and filed an application for dispensing with his personal appearance under
Section 205, Cr PC.

4. Learned Senior Counsel Shri B.P. Pandey, appearing on behalf of both the
petitioners submitted that the petitioners were employees of a Finance Company
situate at New Delhi. The allegations against them in the complaint were omnibus
in nature and there were no individualistic allegations against them in respect
of which cognizance had been taken. It was submitted that the complaint merely
recited that the petitioners were directly responsible and have participated in
the commission of the offence. Notwithstanding the allegations, it was submitted
that the parameters for grant of relief under Section 205, Cr PC more or less
stand defined both by this Court and the Apex Court. Notwithstanding the
enunciation of law and considering the averments in the complaint, there was no
justification to decline grant of relief to the petitioners. The impugned order
rejecting the same also does not reflect any application of mind to the
principles under which the application was required to be considered. Summing up
it was pleaded that in so far as accused No. 6, was concerned he had entered
appearance at the stage of summons. In so far as accused No. 2 was concerned
there being no service report with regard to the summons issued to him, issuance
of bailable warrant was contrary to law and therefore the said accused was
entitled to the benefits of his application under Section 205, Cr PC preferred
by him on 7.3.2000.

5. Learned Counsel appearing on behalf of the opposite party contended that
since accused No. 6 had entered appearance on 6.1.2000, both the accused were at
New Delhi, therefore accused No. 2 cannot contend that he was not aware of the
proceedings. Referring to Section 63 of the Criminal Procedure Code, learned
Counsel submitted that the moment summons were served upon the local office of
the Company both the petitioners would be deemed to have knowledge of the case,
and cannot be allowed to contend to the contrary. There was thus proper service
of summons. It was thus submitted that bailable warrant having been issued
against the accused No. 2 the privilege of Section 205, Cr PC was not available
to him any more, learned Counsel concluded his submissions by stating that the
allegations were serious in nature and that the petitioners did not deserve
privilege of Section 205, Cr PC.

6. Having considered the rival submissions of the Counsel for the parties
this Court holds that it is not in dispute from the records that accused No. 6
in fact entered appearance at the stage of summons. In so far as accused No. 2
is concerned, there was no service report with regard to summons when warrants
came to be issued against him on 11.1.2000. Chapter VI of the Code of Criminal
Procedure details the procedure of issuance of and service of summons. The stage
of warrant as contained in Part B of Chapter VI arises only thereafter. In the
absence of any order recording the satisfaction of the Court below with regard
to the service of summons according to law, the bailable warrants issued against
the petitioner (accused No. 2) cannot be sustained. In the circumstances, this
Court holds that the issuance of warrant against accused No. 2 was not justified
at this stage. Reliance may be had upon the judgment of this Court reported in
2000(3) PLJR

251. Warrants thus having been issued contrary to law the proceedings would
be deemed to be at the stage of summons and the accused No. 2 having entered
appearance at this stage cannot thus be denied the benefit of consideration for
grant of relief under Section 205, Cr PC. This Court therefore holds that the
proceedings in so far as accused No. 2 be concerned, rests at the stage of
summons.

7. The primary consideration for grant of relief under Section 205, Cr PC,
keeping in mind interest of opposite party No. 2, would be whether his interest
would be prejudiced in any manner if the relief prayed for was granted. Learned
Counsel for the opposite party No. 2 in reply to the query of the Court
submitted that he had been subjected to unnecessary harassment by the
petitioners and others and therefore they did not deserve benefits of Section
205, Cr PC.

8. This Court in the facts and circumstances of the case considers it apt to
agree with the judgment relied upon by the Counsel for the petitioners reported
in 1998(1) PLJR 503. A Division Bench of this Court while dealing with the issue
of grant of relief under Section 205, Cr PC held that even in cases where
warrants have been issued in the first instance the Court may dispense with the
personal appearance in exercise of powers under Section 482 of the Code, if a
proper case is made out for the ends of justice. The Division Bench further went
on to hold that the exercise of power under Section 205, is discretionary and to
be considered in a reasonable manner. No hard and last rule could be laid down.
The Court should be liberal in granting exemption in personal appearance except
where serious issues or allegations of moral turpitude are involved. The nature
of the allegation, conduct of the accused, inconvenience likely to be caused to
the accused due to his appearance on every day in the Court the comparative
advantage to the prosecution, are all relevant considerations for deciding the
question of dispensing with the personal appearance. Though no categorization of
cases for grant of relief under Section 205, Cr PC could be made but generally
"....busy business people... should be given the benefit of the said provision
unless they are facing prosecution under serious offences like murder, rape,
misappropriation of money, harassment to women etc." The fact that the
petitioners are business people and reside at Delhi, while the trial is to be
conducted at Patna are issues which have not been considered in the impugned
order. More recently the Supreme Court in (2001) 7 SCC 401 while considering the
issue of dispensing with personal attendance in a prosecution arising under the
Negotiable Instruments Act, held that in appropriate cases the Magistrate can
allow an accused to make even first appearance through the counsel. The law
would enjoin that personal appearance of an accused could be dispensed with at
any stage in a proceeding at the summon stage and that if insistence of his
personal appearance would itself inflict enormous suffering or tribulation on
him and the comparative advantage would be less. The discretion would need to be
exercised where due to far distance at which the accused reside or carries on
business, or for other good reason were dispensing from personal appearance
would be in the interest of justice. These are all aspects which have to be
considered for grant of relief under Section 205, Cr PC. This position in the
law has been reiterated by a Bench of this Court in a judgment reported in
2002(3) PLJR 583, placing reliance upon the law as enunciated by the Apex Court
in the judgment aforesaid. This is the position reiterated in 2002 (3) PLJR 628
by another Bench of this Court.

9. In the background of the law as aforesaid with regard to the consideration
of an application under Section 205, Cr PC this Court is inclined to hold that
the impugned order dated 22.8.2000 is cryptic in nature. It does not reflect any
consideration of the issues germane for grant of relief under Section 205, Cr
PC. It is apparent that in the background that the impugned order does not take
into consideration the issue relevant in law for consideration of an application
under Section 205, Cr PC prejudice has been occasioned to the petitioners. In
the circumstances of the case, this application therefore has to be allowed.

10. Cr. Misc. No. 19832/2000 and Cr. Misc No. 34712/2000, are therefore
allowed. In so far as Cr. Misc. No. 29832/2000 is concerned, this Court, has
held hereinabove, that the case stands at the summon stage in so far as the said
petitioner is concerned.

11. The impugned order dated 22.8.2000 is therefore set aside. The matter is
remanded to the Court below to consider the application under Section 205, Cr PC
preferred on behalf of the petitioners afresh in accordance with law. The Court
below shall hear the parties afresh after fixing the date for hearing and then
proceed to pass appropriate orders in accordance with law.