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Sushil Kumar Gupta v. State Of Jharkhand And Another
Structured Summary of the Provided Opinion
Factual and Procedural Background
This petition was filed by the accused (referred to as the petitioner) seeking quashing of the order dated 13 July 2004 of the Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 350 of 2003. The Magistrate had rejected the petition under section 205 of the Code of Criminal Procedure (Cr. P.C.) in which the petitioner asked to be dispensed from personal attendance during the trial and to be permitted to appear through his pleader subject to conditions.
The petitioner, through counsel, alleged that the complainant (Opposite Party No. 2) is his elder brother and had become inimical, instituting multiple complaint cases against him (including the present case for offences under Sections 454, 427 and 380 of the Indian Penal Code) allegedly to harass and to pressurize the family for grabbing property. The petitioner claimed he is a busy businessman and also pleaded disability arising from a serious accident causing fractures of both legs with steel rods implanted, making prolonged standing difficult and necessitating rest.
Opposite Party No. 2 contested both the motive alleged by the petitioner and the claimed physical disability, pointing out that the petitioner had earlier attended court and given evidence in other cases he had filed, and asserting that the petitioner could not now claim inability to attend.
The Magistrate rejected the petition under section 205, Cr. P.C., and the petitioner sought relief under section 482, Cr. P.C. before this Court. The Court considered the statutory position, prior decisions of higher courts, and the factual circumstance that only summons (and not a warrant) had been issued in the present case.
Legal Issues Presented
- Whether the Magistrate erred in rejecting the petition under section 205, Cr. P.C. seeking dispensation of the accused's personal attendance at trial and permitting appearance through counsel.
- Whether, having regard to the nature of the allegations and the fact that only summons (and not a warrant) had been issued, the Court should exercise its powers under section 482, Cr. P.C. to dispense with the accused's personal attendance subject to conditions.
Arguments of the Parties
Petitioner's Arguments (as presented to the Court)
- The complainant is the petitioner's full brother who has become inimical and has filed multiple complaint cases, including the present case, for purposes of harassment and to seize family property.
- The petitioner is a busy businessman who cannot attend court regularly and should be allowed to appear through his pleader, appearing personally only when the Court considers it necessary.
- The petitioner suffers from serious injuries (fracture of both legs with steel rods) and experiences acute pain and difficulty standing for long periods; he had undergone treatment and was advised rest and avoidance of strain.
- On these grounds, and relying on cited authorities, the Magistrate should have dispensed with his personal attendance under section 205, Cr. P.C.
Opposite Party No. 2's Arguments
- The petitioner and others had earlier sought quashing in Cr.M.P. No. 1056 of 2003 against the order taking cognizance in the same complaint, which this Court refused on 23 July 2004, finding no ground to interfere with the cognizance/order or the criminal proceeding.
- Opposite Party No. 2 disputed the petitioner's claim of physical inability to attend court and pointed out that the petitioner had previously attended and given evidence under section 202, Cr. P.C. in other cases he himself had instituted.
- Given the petitioner's prior attendance in multiple matters, OP No. 2 urged that the petitioner could not now claim to be busy or physically unfit to attend.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., (2001) 7 SCC 401 | Noted that provisions of Cr. P.C., including section 205, vest discretion in the Magistrate to grant exemption or dispense with personal attendance of the accused. | The Court relied on this Supreme Court authority to confirm that dispensing with personal attendance is within the Magistrate's discretion. |
| Helen Rubber Industries, Kottayam v. State of Kerala, 1973 Cri LJ 262 (Kerala HC) | Held that in trivial and technical cases and in respect of ladies, old and sickly persons, daily wage earners, workers and busy business people, Courts should liberally exercise discretion to exempt personal attendance. | The Court noted this rule (and that the Patna High Court in Ravi Singh followed it) as part of the background on when discretion may be exercised liberally. |
| Ravi Singh v. State of Bihar, 1980 Cri LJ 330 (Patna HC) | Followed the principle in Helen Rubber Industries regarding liberal exemption in specified categories. | The Court referenced this decision as an example of Patna High Court practice following Helen Rubber and considered it in its survey of authorities. |
| Lily Begum v. Joy Chandra Nagbanshi, (1994) 2 SCC 39 | Held that dispensing personal attendance on the ground of the accused being a social worker and known to village people was untenable. | The Court cited this Supreme Court decision as a caution that not all claimed statuses justify dispensation; it formed part of the principles the Court balanced in reaching its decision. |
| Ram Harsh Das v. State of Bihar, 1998 (1) All PLR 495 (Patna HC, Division Bench) | Observed that powers under section 205 can be exercised even in warrant cases if summons were issued instead of a warrant; but if a warrant was issued at the first instance the power cannot be exercised. No hard and fast rule can be laid down. | The Court treated this Division Bench decision as authoritative guidance on the interplay of summons/warrant with the power under section 205 and relied on it to note that because only summons (and not a warrant) had been issued, section 205 principles could be applied. |
| Dr. Prem Agrawal v. The State of Bihar & Anr., 2002 (3) East Cri C 87 (Pat) | Applied and followed the principles in Ram Harsh Das regarding the exercise of powers under section 205. | The Court noted this decision as having followed Ram Harsh Das, reinforcing the Patna High Court approach relied upon by the Court. |
| Nadebasi Maji v. The State of Bihar & Anr., 1999 BCCR 820 (Ranchi Bench of Patna HC) | Cited by the petitioner in support of dispensing with personal attendance. | Listed among authorities relied upon by the petitioner; the Court's reasoning did not state an independent reliance on this specific decision in its operative directions. |
Court's Reasoning and Analysis
The Court proceeded by first stating the settled principle that an accused does not have a right as of course to be exempted from personal attendance under section 205, Cr. P.C.; rather, the Magistrate has discretion to grant such exemption if reasons exist. The matter of dispensing with personal attendance is within the discretion of the Magistrate and depends on the circumstances of each case.
The Court surveyed relevant authorities. It cited the Supreme Court's decision in Bhaskar Industries (2001) for the broad proposition that the Magistrate's discretion extends to granting exemption under section 205. It noted decisions (Helen Rubber Industries and Ravi Singh) advocating a liberal exercise of discretion in trivial/technical matters and for classes such as the elderly, sick, daily-wage earners and busy business people, while also recording the Supreme Court's decision in Lily Begum cautioning that claimed social standing or reputation alone does not justify dispensation.
The Court then considered the Patna High Court Division Bench decision in Ram Harsh Das and its follow-up in Dr. Prem Agrawal which clarify the relationship between issuance of summons/warrants and the exercise of powers under section 205 — specifically that the power can be exercised where summons (not a warrant) have been issued, and that no rigid rule applies in every case.
Applying these principles to the facts before it, the Court emphasized that in the present matter only summons and no warrant had been issued to the accused. Taking into account the nature of the allegations, the authorities referred to (both Supreme Court and Division Bench/High Court decisions), and the procedural posture, the Court exercised its inherent powers under section 482, Cr. P.C. to allow the petition and to dispense with the accused’s personal attendance, subject to conditions designed to protect the integrity of the trial and confirm identity.
The conditions imposed were: (1) the accused must give an undertaking satisfactory to the Court that he will not dispute his identity as the accused; (2) the accused’s counsel will be present in court; and (3) the accused has no objection to evidence being taken in his absence. The Court also expressly retained the power to require the accused’s presence at any stage of the trial if the Court, for reasons to be recorded, concludes his presence is necessary.
Holding and Implications
HOLDING: The Cr.M.P. was allowed. The Court, exercising its powers under section 482, Cr. P.C., set aside the Magistrate's order rejecting the prayer under section 205, Cr. P.C., and directed that the accused's personal attendance be dispensed with; the accused may appear through his lawyer subject to specified undertakings and conditions.
Implications:
- The direct effect is that the petitioner/accused is permitted to appear by his counsel and need not attend personally so long as he provides the required undertaking and the counsel is present, and he does not object to evidence being recorded in his absence.
- The Court preserved the trial court's discretion to summon the accused personally at any stage if, for articulated reasons to be recorded, the trial court deems the accused's presence necessary.
- No broader or novel precedent was declared in this opinion; the Court applied and reconciled existing Supreme Court and High Court authorities to the facts before it rather than laying down a new rule of general application.
Disposition: Cr.M.P. allowed; petition allowed.
1. This petition has been preferred by petitioner for quashing the order dated 13th July, 2004 passed by Sri Santosh Kumar, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 350 of 2003, whereby and whereunder, the learned Magistrate has been pleased to reject the petition preferred by the petitioner under the provisions of section 205, Cr. P.C praying therein to dispense with his personal appearance during the trial subject to any condition.
2. Counsel for the petitioner submitted that the complainant (O.P No. 2) is full brother of petitioner and now become inimical to the petitioner. Only for the purpose of harassment, the complainant has preferred a number of complaint cases against the petitioner including the present complaint petition for the charges u/Ss. 454, 427 and 380, I.P.C The complainant is the eldest son of Sri Anand Swaroop Gupta, who wants to grab the entire property of his younger brother by way of instituting false cases against his father, Sri Anand Swaroop Gupta, brother i.e the petitioner as also against Vishnu Dayal Gupta and Naresh Kumar Gupta and for the said purpose, he has already filed another Complaint Case No. 46 of 1999, G.R No. 2560 of 2000. The whole purpose behind filing the false case is that he is trying to grab the entire property by way of black mailing and pressurizing his father, Sri Anand Swaroop Gupta and the younger brother. Counsel for the petitioner also submitted that the petitioner is a very busy businessman and cannot give much time to attend the Court. He may be allowed to appear as and when the learned Court feels it necessary. It was further submitted that the petitioner is suffering from acute pain consequent to serious accident resulting in fracture of both of his legs for which he had to undergo rigorous treatment at Delhi and in both of his legs steel rods have been engrafted due to which he is not only disabled from taking up any heavy work or load, but also feels difficulty in standing for a long period. He has been advised for complete rest to his legs and avoid any strain in legs and the waist.
3. It was submitted that the petitioner having shown sufficient grounds, the Magistrate should have dispensed with the personal attendance of the petitioner and permit him to appear through his pleader. In support of his submission. Mr. Pandey Neeraj Rai, learned counsel for the petitioner relied upon certain cases which are detailed hereunder:
(i) Ravi Singh v. State of Bihar, 1980 Cri LJ 330 — Decision of the Patna High Court;
(ii) Ram Harsh Das v. State, 1998 (1) All PLR 495 — Decision of the Patna High Court;
(iii) Nadebasi Maji… v. The State Of Bihar & Anr.…Opp. Parties., 1999 BCCR 820 — Decision of the Ranchi Bench of the Patna High Court
(iv) Dr. Dr. Prem Agrawal… v. The State Of Bihar & Anr.…, 2002 (3) East Cri C 87 (Pat) — Decision of the Patna High Court.
4. Counsel for the O.P No. 2 submitted that the petitioner and some other accused had earlier filed a quashing application being Cr.M.P No. 1056 of 2003 against the order taking cognizance in Complaint Case No. 350 of 2003 but it was refused by this Court vide order dated 23rd July, 2004. The Court ob served that no ground was made out to interfere with the order taking cognizance or the entire criminal proceeding. The relevant facts and grounds taken in the present case were taken into consideration by this Court in the said Cr.M.P No. 1056 of 2003. The O.P No. 2 has also disputed the fact that the petitioner, Sushil Kumar Gupta is not able to attend the Court physically be cause of his disability and illness. It was submitted that the petitioner, Sushil Kumar Gupta has lodged four cases against the O.P No. 2, namely. Pawan Kumar Gupta, as detailed hereunder:
(i) Complaint Case No. 689 of 2000 filed on 17th November, 2000 u/Ss. 452, 323, 324, 386 and 379, I.P.C
(ii) Complaint Case No. 224 of 2001 u/Ss. 379, 467. 468. 471 and 196, I.P.C
(iii) Lower Bazar P.S Case No. 36 of 2001 u/Ss. 379, 467, 468 and 471. I.P.C
(iv) Mohammadpur (Gopalganj) P.S Case No. 32 of 2003 u/Ss. 341, 379, 323, 504 and 34, I.P.C
In all the aforesaid cases, petitioner, Sushil Kumar Gupta had been attending the Court and has given his evidence in the complaint case on oath u/S. 202, Cr. P.C and in those cases, O.P No. 2 is attending the Court regularly. It was submitted that if the petitioner, Sushil Kumar Gupta is otherwise not busy and physically fit to appear before the Court in all the cases preferred by him, he cannot take plea that he is a busy businessman and physically unfit.
5. It is not in dispute that an accused cannot claim as a matter of right to dispense with his personal attendance u/S. 205, Cr. P.C If the Magistrate finds reasons and grounds, he may dispense with the personal attendance of the accused and permit him to appear through his pleader. The matter concerned is between the accused and the concerned Judge. There cannot be categorization of cases where the power to be exercised u/S. 205, Cr. P.C
6. The question relating to exemption from appearance or dispensation with the personal attendance of the accused fell for consideration before the Supreme Court in the case of ‘Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd., (2001) 7 SCC 401 : (2001 Cri LJ 4250). Their Lordships noticed the various provisions of Cr. P.C including section 205 and held it would be within the discretion of the Magistrate to grant exemption or dispense with personal attendance of the accused.
7. In the case of Helen Rubber Industries, Kottayam v. State of Kerala, 1973 Cri LJ 262, Kerala High Court held “that in all trivial and technical cases where the accused are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists, Courts should invariably exercise discretion liberally to exempt such persons from personal attendance”. This was followed by the Patna High in the case of ‘Ravi Singh v. State of Bihar’, 1980 Cri LJ 330. But the Supreme Court in the case of ‘Lily Begum v. Joy Chandra Nagbanshi’, (1994) 2 SCC 39, held that “dispensation of personal attendance on the ground of accused being social worker and known to the village people is untenable”.
8. In the case of ‘Ram Harsh Das v. State of Bihar’, reported in 1998 (1) All PLR 495, a Division Bench of the Patna High Court while appreciating the provision u/S. 205, Cr. P.C, observed that the Magistrate can exercise the powers conferred upon him u/S. 205, Cr. P.C even in warrant cases, provided he had issued summons instead of issuing the warrant. The Court further observed that in a case where a warrant has been issued at the first instance, the power u/S. 205, Cr. P.C cannot be exercised. The Court further observed that no hard and fast rule can be laid down for deciding the question of grant or refusal of prayer for dispensing the personal attendance.
9. The aforesaid decision in Ram Harsh Das (supra) was noticed and followed by the Patna High Court in the case of ‘Dr. Dr. Prem Agrawal… v. The State Of Bihar & Anr.…’, 2002 (3) East Cri C 87 (Pat).
10. In the facts and circumstances and taking into consideration the na ture of allegation, the law laid down by the Division Bench of the Patna High Court and the Supreme Court, as referred to above and that only summon has been issued and no warrant has been issued against the accused, this Court in exercise of powers u/S. 482, Cr. P.C allows the application filed by the accused and dispenses with his personal attendance and hereby directs that the accused may appear through his lawyer.
11. It is further directed that the aforesaid benefit be granted to the accused, if he gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the said case, and his counsel will be present in Court, and that the accused has no objection in taking evidence in his absence.
12. If at any time during the course of trial, the Court comes to the conclusion that presence of the accused is required then for the reasons to be recorded by it, the Court may direct the accused to remain in attendance and the accused in such case will attend the Court.
13. This Cr.M.P is allowed, with the aforesaid observations and directions.
14. Petition allowed.
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