Suhas Palekar vs Badshah Hotel And Resorts

Equivalent citations: 2004 CriLJ 536

Bench: T Vaiphei
Suhas Palekar vs Badshah Hotel And Resorts on 1/9/2003

ORDER

T. Vaiphei, J.

1. This revision application under Section 401 read with 482 of the Cr.P.C.
directed against the order dated 29-4-2002 passed by the learned Additional
Sessions Judge, West Tripura, Agartala in Crl. Rev No. 45(4) of 2001 affirming
the order dated 6-10-2001 passed by the learned Additional Chief Judicial
Magistrate, West Tripura, Agaratala in CR No. 1199/2000.

2. The facts of the case in brief are that the petitioner is the Vice
President, Corporate Human Resources Management and Communication of Kirloskar
Brother Ltd. Having its office at Awas 11/46, Nirmal Boug Udyog Bhavan, Tilak
Road, P.S. Pune, Pune/411 002. It is stated in the revision petition that
Kirloskar Brothers Ltd. Employs more than four thousands workers and staffs in
its establishment at its three factories located in Maharashtra and Madhya
Pradesh and is having regional office and branch office all over the country.
For the purpose of management and meeting the daily needs of the workers and
staff, it is necessary for the petitioner to be available at its office at all
times. It is further stated in the revision petition that the petition that the
learned Addl. Chief Judicial Magistrate, West Tripura, Agartala was pleased to
take cognizance of offence punishable under Section 500/501 of the IPC and
issued summon against the petitioner. On receipt of the summon, the petitioner
contacted his Advocate to ascertain the facts and circum stances leading to the
filing of the complaint case against him. The petitioner states that similar
notice was also received by one Sri Sanjoy Kirloskar whereupon the said Sanjoy
Kirloskar filed an application under Section 482, Cr.P.C. before this Court
being Crl. Rev. No. 13 of 2001 for quashing the proceeding before the learned
trial Court. After hearing the both sides, this Court was pleased to quash the
said proceeding in so far as the said Sanjoy Kirloskar is concerned vide
judgment dated 27-4-2001. The petitioner decided to contest the proceeding
before the Addl. Chief Judicial Magistrate, West Tripura, Agartala and
accordingly, engaged his advocate to enter into appearance on his behalf of and
take all necessary steps for contesting the said proceeding. Accordingly, Sri
Hare Krishna Bhowmik, Counsel for the petitioner entered his appearance on
behalf of the petitioner and on 26-6-2001 filed an application under Section
205, Cr.P.C. praying for exempting the petitioner from appearing before the
learned Trial Court with the following undertakings.

(a) That the petitioner will never dispute or challenge his identity during
the trial before the learned Trial Court.

(b) That he will attend the trial Court as and when desire by the learned
Trial Court.

3. He also stated in his petition the circumstances under which he could not
personally attend the Trial Court. Against this petition, the opposite party
filed an objection contending that the petition is not maintainable on the
ground that the provisions of Section 205, Cr.P.C. apply at the time when summon
was issued and it cannot be invoked by the accused petitioner at this stage.

4. Learned Trial Court after hearing rejected the application filed by the
petitioner by his order dated 6-10-2002 on the ground that the petitioner had
not appeared even once from the very inception of the case. By relying upon the
judgment of the Apex Court reported in (2001) 1 SCC 710, the trial Court held
that the first appearance of the accused person is a must in the Court when the
case is pending. After which the Court may exempt the accused from personal
appearance. Therefore, the petitioner filed a revision petition before the Ld.
Additional Sessions Judge, West Tripura challenging the said order of the Ld.
Additional Chief Judicial Magistrate, West Tripura. The learned Additional
Sessions Judge by the order dated 29-4-2002 dismissed the revision petition.

5. Aggrieved by the said orders of the learned Trial Court and the Addl.
Sessions Judge, the petitioner has approached this Court under Section 401 read
with 482, Cr.P.C.

6. Heard Mr. P.K. Biswas, learned Counsel for the petitioner. I have also
heard Mr. D. Guha and Mr. P. Chakraborty, learned Counsel appearing for the
respondent.

7. It is vehemently submitted by the learned Counsel for the petitioner that
both the learned Addl. Sessions Judge and the learned Additional Chief Judicial
Magistrate grossly erred in rejecting the application of the petitioner for
exempting his appearance in Court. In this connection, learned Counsel cited the
decision of the Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim &
Apparels Ltd. Reported in (2001) 7 SCC 401 : (2001 Cri LJ 4250). On the other
hand, Mr. P. Chakraborty; learned Counsel for the respondent submits that in
view of the decision rendered by the Apex Court in a case reported in (2001) 1
SCC 710 where the Apex Court has clearly held that first appearance of the
accused person is most essential in the Court where the case is pending and
after which the Court may exempt the accused from personal appearance. The Court
below did not commit any illegality in rejecting the prayer of the petitioner .

8. I have gone through the impugned order and I have also examined the rival
contention of the Counsel appearing on behalf of both the parties. It may be
noted that the petitioner in his application before the learned Additional Chief
Judicial Magistrate, West Tripura, Agartala has clearly mentioned the reason for
his inability to attend the Court personally. This is not a case in which the
petitioner is merely seeking exemption from appearance without any reason as
stated earlier. As a responsible official in the Kirloskar Brothers Ltd. it is
imperative that he be available at his office at all times to look after the
management of the Company. The impugned order of the learned Addl. Chief
Judicial Magistrate shows that the ground of exemption stated by the petitioner
were not dealt with in a manner expected of a judicial officer. The learned
Addl. Chief Judicial Magistrate is expected to and should apply his mind
carefully on the reasons given by the petitioner in his application. The order
dated 6-10-2001 clearly shows that the learned Chief Judicial Magistrate has
been completely swayed by the facts that the accused petitioner did not appear
before him even once from the date of inception of the case and that he has
failed to consider the grounds of exemption urged by the petitioner. On going
through the impugned order of the learned Addl. Sessions Judge it is quite
evident that the contention of the petitioner on this aspect has also escaped
the attention of the learned Addl. Sessions Judge.

9. Learned Counsel for the petitioner strenuously urged that the Apex Court
in Bhaskar Industries Ltd. case (2001 Cri LJ 4250) (supra) has held that in a
summon case, the personal appearance of the accused is not to be insisted upon.
I have carefully gone through the judgment of the Apex Court. To my mind, what
the Apex Court has held is that in an appropriate case, the Magistrate can
dispense with the personal appearance of the accused in Court. But the Apex
Court does not said that is a matter of right for the accused not to appear in
Court personally in summon case. In other words, the law laid down by the Apex
Court, as I understand, is that in a summon case such as one involving minor
offence, where personal attendance may result to him enormous hardship and heavy
expenses, the Court may dispense with his personal attendance at any particular
stage of the proceeding after taking an undertaking from him that he would not
dispute his identity as the particular accused in the case and that a counsel on
his behalf would be present in the Court and he would have no objection in
taking evidence in his absence. It is thus clear that the accused cannot claim
exemption from personal appearance in the Trial Court as a matter of right, but
he can apply to the Court for such exemption on some sufficient ground. At this
stage, it may be profitable to extract the observation of the Apex Court as
under (Paras 18 and 19) :

"Section 205(2) says that the Magistrate can in his discretion direct the
personal attendance of the accused at any stage of the proceedings. He can even
resort to other steps for enforcing such attendance. Thus it is within the
powers of a Magistrate and in his judicial discretion to dispense with the
personal appearance of an accused either throughout or at any particular stage
of such proceedings in a summons case, if the Magistrate finds that insistence
of his personal presence would itself inflict enormous suffering or tribulations
on him, and the comparative advantage would be less. Such discretion need be
exercised only in rare instances where due to the far distance at which the
accused resides or carries on business, or on account of any physical or other
good reasons the Magistrate feels that dispensing with the personal attendance
of the accused would only be in the interests of justice. However, the
Magistrate who grants such benefit to the accused must take the precautions
enumerated above as a matter of course. When an accused makes an application to
a Magistrate through his duly authorised counsel praying for affording the
benefit of his personal presence being dispensed with the Magistrate can
consider all aspects and pass appropriate orders thereon before proceeding
further."

10. So far as the submission of the learned Counsel of the respondent is that
the first appearance of the accused is a must in the Court where the case is
pending and after which the Court may except the accused from personal
appearance is concerned, the Apex Court in Bhaskar Industries Ltd. case (2001
Cri LJ 4250) (supra) has dealt with the same situation which may be extracted
hereunder :--

"17. Thus, in appropriate cases the Magistrate can allow an accused to make
even the first appearance through a counsel. The Magistrate is empowered to
record the plea of the accused even when his counsel makes such plea on behalf
of the accused in a case where the personal appearance of the accused is
dispensed with. Section 317 of the Code has to be viewed in the above
perspective as it empowers the Court to dispense with the personal attendance of
the accused (provided he is represented by a counsel in that case) even for
proceeding with the further steps in the case. However, one precaution which the
Court should take in such a situation is that the said benefit need be granted
only to an accused who gives an undertaking to the satisfaction of the Court
that he would not dispute his identity as the particular accused in the case and
that a counsel on his behalf would be present in Court and that he has no
objection in taking evidence in his absence. This precaution is necessary for
the further progress of the proceedings including examination of the witnesses."

11. The above paragraph is a complete answer to the submission of the learned
Counsel for the respondent. I need say no more in this behalf. In the light of
the foregoing decision, it is crystal clear that the petitioner can be exempted
from making personal appearance before the learned trial Court even on the first
date fixed for his personal appearance if he is duly represented by his Counsel.
Needless to say, the learned Addl. Chief Judicial Magistrate may take necessary
precaution when he decides to exempt the petitioner from personal appearance by
ensuring that necessary undertaking is given by him to his satisfaction that he
would not dispute his identity as a particular accused in the case and the
Counsel on his behalf would be present in the Court and that he has no objection
in taking evidence in his absence.

12. In view of the above, the impugned order dated 29-4-2002 passed by the
learned Addl. Sessions Judge, West Tripura, Agartala as well as the order dated
,6-10-2001 passed by the Chief Judicial Magistrate, West Tripura, Agartala
suffered from non application of mind and as such the some cannot be sustained.
In the result, the impugned order dated 29-4-2002 passed in C.R. 45(4)/01 as
well as the order dated 6-10-2001 passed in CR 1199 of 2000 are hereby quashed.
The petitioner is directed either by himself or through his counsel to move a
fresh application seeking relief under Section 317, Cr.P.C. before the learned
Addl. Chief Judicial Magistrate, West, Tripura, Agartala and if such application
is filed, learned Magistrate shall duly consider such application in the light
of the observation made above and pass orders thereof.

No order as to costs.

Revision application stands allowed.