The Judgment of the court was delivered by
D.G.R Patnaik, J.:—Heard the parties.
2. The Petitioners have invoked the inherent jurisdiction of this Court under Section 482 Cr.PC with a prayer for quashing the Order dated 2nd March, 2007, passed by learned Judicial Magistrate, 1st Class, Bokaro in Complaint Case No. 373 of 2003. The Petitioners are cited as accused and are facing trial for the offences under Sections 420, 468, 469, 120B of the Indian Penal Code, besides offence under Section 17 of the Drugs and Cosmetics Act. By the Order impugned, the learned Court below had refused to extend protection to the Petitioners under Section 205 Cr.PC The Petitioners had filed their application for exemption of personal appearance in this cast: under Section 205 Cr.PC on the ground that they being employed as Chairman-cum-Managing Director and Executive Director of Pharmaceutical Company, namely, M/s. Unichem Laboratories Ltd., they have been made accused in this case for alleged acts, which they have not committed, since they being high officials of the Company, they have no direct involvement in the day to day business of the Company and further, that both the Petitioners by virtue of their office, are stationed at Company's Headquarters at Bombay and they are also required to undertake business trips not only within India but also outside the country and as such it would be extremely inconvenient and prejudicial to their interest, if exemption for personal appearance is not granted to the Petitioners.
3. The learned Court below refused the prayer of the Petitioners on the ground that the Petitioners have not made out any justifiable reason to treat them separately when a provision of Section 317 Cr.PC is always available to them for being represented by their lawyer instead of putting in their personal appearance on each date. The learned Court below had felt that “equality before law being a sacrosanct principle of our Constitution, it should not be diluted by giving “carte blanche” to any higher factionary to be above law”. Assailing the impugned Order, Mrs. Anjana Prakash, learned Counsel for the Petitioners submits that learned Court below has totally misconceived the scope and purpose of Section 205 Cr.PC and has further failed to appreciate the special grounds advanced by the Petitioner in support of their prayer. Explaining the circumstances, learned Counsel submits that admittedly both the Petitioners are high ranking executives of the Company and they are stationed at the Headquarters of the Company within the State of Maharashtra at Mumbai and by virtue of their office, both the Petitioners need to undertake frequent business trips to various places. Learned Counsel explains that the Petitioners are sought to be made responsible by way of vicarious liability for some medicines marketed through the marketing division of their Company, though neither of the Petitioners are concerned with the Company's marketing section nor were they directly involved in supply of medicines to the Complainant. Learned Counsel adds that on considering the merits of the case the Petitioners were granted anticipatory bail and thereafter, they had appeared before the Court below. Learned Counsel explains that even though cognizance was taken for the offences under Sections 420, 463, 468 and 469 of the Indian Penal Code and Section 27 of the Drugs and Cosmetics Act, against the Petitioners, but none of the offences are applicable to the Petitioners. Yet, the Petitioners are prepared to face trial and the only concession they had prayed for was to extend the protection under Section 205 Cr.PC Learned Counsel explains that this Court on proposal under Section 205 Cr.PC is not limited and confined only to cases of petty offences or summons at the trial of the cases, but in appropriate cases even if the offences are triable, the discretion may be exercised in favour of the accused under Section 205 Cr.PC
4. To butteress her argument, learned Counsel refers to the judgment passed by the Patna High Court in the case of Shantanu Kumar Das v. The State of Bihar, reported in 2000 (3) PLJR 134; and the judgment in the case of Prabhat Ranjan v. State of Bihar reported in 2004 (3) BCCR and also the judgment passed in Amar Nath Jha v. State of Bihar reported in 2005 4 SCC.
6. For better appreciation of the grounds, the case of the prosecution needs to be considered. The case was registered against altogether five accused persons, including the Petitioners by the Complainant, who is a retail Medicine Dealer of the Town of Bokaro. The Petitioner Nos. 1 and 2, are Chairman-cum-Managing Director and Executive Director of a pharmaceutical Company, namely, M/s. Unichem Laboratories Ltd. having its registered Head-office at Mumbai. The Complainant has alleged that the consignment of a particular brand of medicines marketed by Advertising Division of the Company was purchased by him-through the local wholesale dealer, namely, Accused No. 5. On sale of the medicine to a customer, the. Compfainant was confronted with a complaint from the customer that the stock of the medicines supplied to him was spurious in as much as the period-before which the medicine was to be used, had long lapsed and the information displayed on the outer cover of the medicine pertaining to the date of manufacture and the date of expiry, was blackened and on proper scrutiny by erasing blackened mark, it was detected that the entire consignment of the medicine was supplied illegally and in contravention of the provision of the Drugs and Cosmetics Act. Alleging that the Petitioners being the Chairman-cum-Managing Director and Executive Director of the Pharmaceutical Company, the Complainant has claimed that the accused persons, including the Petitioners had committed acts of cheating and acts of forgery thereby causing him serious loss both of his money as well as goodwill of his business.
7. The issues raised in this application relates to the scope and extent of the provisions of Section 205 Cr.PC, which reads as follows:
205. Magistrate may dispense with personal attendance of accused.-(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader;
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
8. A bare reading of the provision would indicate that it is the discretionary power of the Magistrate to dispense with the personal attendance of the accused. The provision does not specify the circumstances, in which the discretion may or may not be exercised in favour of the accused. At a first reading of the Section, it would appear that the Magistrate may dispense with the personal attendance of the accused, only when the issues summons to the accused and if he sees reason so to do. It may be argued that where warrants have been issued, discretion under the provision of Section 205 Cr.PC should not be invoked in favour of the accused. It may also be argued that invoking the provision of Section 205 Cr. PC would be confined to offences of petty nature or at best summons triable cases.
9. Judicial precedents do not generally favour the exercise of discretion under Section 205 Cr.PC by the Magistrate in cases of serious offences. Nevertheless, while explaining the scope and purpose of Section 205 Cr.PC, the Courts have not altogether prohibited the exercise of discretion in favour of the accused even in the cases of warrant triable offences and also where warrants have been issued against the accused persons for securing their appearance. While explaining the scope and purpose of the provisions of Section 205 Cr.PC the Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. (2001) 7 SCC 401 and later in the case of S.V Mazumdar v. Gujarat State Fertilizer Co. Ltd. (2005) 4 SCC 173 has provided guidelines for invoking the provisions of Section 205 Cr.PC and has observed that the main concern of the Court is administration of criminal justice and for that purpose the Court proceedings should register progress. Where the provisibn of Section 205 Cr. P.C is invoked, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. Explaining the scope for exercising discretion, the Apex Court has also observed that the discretion to dispense with the personal attendance should be exercised in rare cases due to distance or any physical disability or other good reason, in the interests of justice.
10. The test basically is the assurance that the Court's proceeding would not be hampered by allowing the personal attendance of the accused to be dispense with. It would no doubt also depend upon the gravity of offence. The approach of the Magistrate should be to see whether personal attendance is absolutely necessary for the purpose of case. While considering prayer for protection under Section 205 Cr.PC, the Magistrate should not adopt too technical or stringent approach though the discretion should not be used liberally for the mere asking of it. Regard should be had to exceptional special circumstances and the inconvenience which the accused is likely to suffer on account of distance or physical disability or for any such good reason, if his personal attendance is insisted upon on each and every date till the conclusion of the trial.
11. In the present case, though the Petitioners have not challenged the older of cognizance-taken by the Trial Court for the offences against them, yet, it has been pleaded that even from the averments made in complaint Petition, it would appear that there was no direct participation of the present Petitioners in the conduct of business of the Company. It is also pleaded that admittedly both the Petitioners, by virtue of their office, are stationed in the State of Maharashtra at Mumbai and it would be extremely inconvenient for them to attend the Court at the trial on each and every date. It has also been pleaded that both the Petitioners give their respective undertaking to appear at the trial whenever called upon by the Court and further, to waive their right of identification in the event of examination of the witnesses in their absence. These are certainly grounds, which weigh in favour of the Petitioners and offer adequate substance for extending the protection under Section 205 Cr.PC
12. It may be noted that the provisions of Section 205 Cr.PC, while allowing the discretion to the Magistrate to dispense with the personal attendance of the accused and permit the accused to appear by his pleader, also empowers the Magistrate to direct the personal attendance of the accused at any stage of the proceeding. A similar power is also vested with the Magistrate under Sub-section (2) of Section 317 of the Code of Criminal Procedure. The learned Trial Court has refused to extend the protection under Section 205 Cr.PC to the Petitioners without proper appreciation of the grounds advanced and on the erroneous belief that extending the protection would amount to diluting the sacrosanct principle of equality of law. Apparently the Trial Court has not appreciated the genuine inconvenience, which would visit the Petitioners on account of the distance and their constant engagement in urgent matters of business relating to their company.
13. In the light of the above discussion, I find merit in this application. The impugned Order of the learned Court below is hereby set aside, the prayer of the Petitioners for dispensing with their personal appearance before the Court below and allowing them to be represented through their lawyer, under Section 205 Cr.PC is allowed. However, the Trial Court would be at liberty to direct personal attendance of the Petitioners at the time of framing of charge or on any specific date as and when it thinks fit.