Rajesh Kumar Chaudhary @ Rajesh ...

vs State Of Bihar on 13 March, 2012

Patna High Court - Orders

Rajesh Kumar Chaudhary @ Rajesh ... vs State Of Bihar on 13 March, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.15828 of 2010
======================================================

1. Rajesh Kumar Chaudhary @ Rajesh Chudhary S/O Ganesh Chudhary R/O Moh.-Kanhauli
Vishundat,P.S.-Mithanpura,Dist.-Muzaffarpur.

.... .... Petitioner/s Versus

1 . T h e S t a t e O f B i h a r . . . . . . . . O p p o s i t e P a r t y / s
====================================================== Appearance :

For the Petitioner/s : Mr. Sanjay Kumar @ S.K. For the Opposite Party/s : Mr. Arun Kumar Pandey,
APP ====================================================== CORAM:
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 6 13-03-2012 Challenge in
this Cr. Misc. petition is the order dated 17.08.2009 passed by Sessions Judge, Muzaffarpur in
Cr.Revision No. 15/2009 as well as order dated 06.01.2009 passed by Sri. D.M. Tripathi, Judicial
Magistrate, 1st Class, Muzaffarpur in Complaint Case No. 2817 of 2005 whereby and whereunder
the successive courts have rejected the prayer made on behalf of the petitioner under Section 205 of
the Cr.P.C.

2. Rajni Kant Mishra filed complaint petition no. 2817 of 2005 against petitioner Rajesh Kumar
Chaudhary, Jaishankar Chaudhary on 22.11.2005 before the learned Chief Judicial Magistrate,
Muzaffarpur for an occurrence alleged to have been committed on 21.11.2005 at about 6:00 P.M.
alleging inter alia that on the alleged date and time of occurrence both the accused, out of whom
petitioner was armed with pistol, came. Jaishankar Chaudhary intruded inside his shop and took
away Rs.750/-. On his protest, Rajesh Kumar Chaudhary (petitioner) fired but the aim missed.
Thereafter accused Jaishankar Chaudhary began to assault him with fist and slap. Shambhu Kumar
Mishra and Vikas came in his rescue who were also assaulted by them and during course thereof,
Rajesh Kumar Chaudhary stroke over head of Shambhu Kumar Mishra with butt of pistol causing
injury thereupon.

3. The complaint was transferred to the court of Magistrate under Section 192 (2) of the Cr.P.C. for
holding an enquiry under Section 202 Cr.P.C during course of which complainant was examined on
S.A. as well as witnesses were also examined and then vide order dated 24.07.2006 petitioner along
with others was summoned to face trial for an offence punishable under Section 341, 321, 379 of the
IPC.

4. Later on, a prayer under Section 205 Cr.P.C. was made on behalf of the petitioner on 07.07.2008
which was heard and then vide order dated 06.01.2009, same was rejected by the learned lower
court against which Cr. Revision No.15 of 2009 was preferred which was also rejected, hence arose a
cause for filing the instant petition.

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 Rajesh Kumar Chaudhary @ Rajesh ... vs State Of Bihar on 13 March, 2012

5. Contention on behalf of the petitioner is that the learned lower court had misinterpreted the
ambit and scope of Section 205 of the Cr.P.C which appears to be innocuous in nature in the
background of the fact that physical presence of accused during trial on account of so many reasons
becomes cumbersome and being the position aforesaid, save and except requiring presence at
relevant stage of the trial, accused is permitted to be represented through Advocate as by such action
neither the trial is held up nor the accused is unnecessary harassed through regular physical
presence, on each and every day. Further submitted that the learned successive courts have
misdirected that the petition is not maintainable as before issuance of warrant of arrest, petitioner
who presently is residing in U.S.A, was already available in the country. Further, submitted that the
learned successive courts have failed to apply the basic feature side by side intention of the
legislature by which there has been presence of Section 205 of the Cr.P.C. giving privilege to the
accused to seek prayer for dispensing with his personal attendance. So, submitted that the
successive orders happen to be contrary to the spirit of law and is accordingly, fit to be set aside.

6. The learned Additional P.P. opposed the prayer and submitted that the prerogative of Section 205
of the Cr.P.C should not be permitted to be misused because of the fact that petitioner by his own
action did not choose to surrender before the learned lower court at an appropriate stage and prayed
before the court for exemption as provided under Section 205 of the Cr.P.C. after leaving the
country. Non presence of petitioner at an earlier stage has put hindrance in smooth sailing of the
trial and the cumulative effect in the aforesaid background happens to be non acceptability of the
prayer. As such, successive orders passed by the learned lower court as well as Revisional court are
fit to be confirmed.

7. Times without number the aforesaid controversy is being arisen before the learned lower court in
a criminal proceeding regarding applicability of Section 205 of the Cr.P.C. in its true sense.
Certainly, apart from Section 205 Cr.P.C., certain other provisions are also visualizing in Cr.P.C. by
which physical presence of accused is dispensed with such as 317 and other provisions governing the
conduction of trial as well as invoking Revisional jurisdiction. Presence of all these relevant sections
did suggest that physical presence of accused on each and every date is not a sine-qua-non for
conduction of proceeding and as such should be dispensed with whenever the circumstances so
necessitate. The scope of 205 of the Cr.P.C. has been taken into consideration repeatedly by the
Hon'ble Apex Court as well as by this Court and have seen it as a privilege like anodyne to interest of
the accused having protected from harassment and inconvenience. However, at this stage, the
gravity of the offence is also to be taken note of.

8. Now the question arises whether application of 205 of the Cr.P.C. can be entertained and allowed
when warrant of arrest, non bailable has been issued against the accused. For better appreciation, it
looks desirable to incorporate Section 205 of the Cr.P.C which goes to show:-

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
accuse and permit him to appear by his pleader.

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 Rajesh Kumar Chaudhary @ Rajesh ... vs State Of Bihar on 13 March, 2012

(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.

9. After going through Section 205 of the Cr.P.C., it is evident that it has been bifurcated in two
parts. The first part empowers the court to dispense with physical attendance of an accused
whenever a prayer is made at the stage of issuing summon after recording reason. While second part
bestows power upon the Magistrate to direct physical presence of accused if it so desires.

10. As state above, the first connotes word summon. Summon, warrant, attachment are steps to be
followed up by the Court for the purpose of securing presence. The scope of Section 205 of the
Cr.P.C when warrant of arrest has been issued against the accused was taken into consideration in
Ram Harsh Das v. State of Bihar & Ors. reported in 1998(1) PLJR 502 wherein at paragraph-48, it
has been observed thus:-

"I am of the considered view that once the Magistrate has issued warrant at the first instance in a
warrant case, the power under Section 205 of the Code cannot be exercised. However, I may state
that even in such cases, this Court may dispense with the personal appearance in exercise of power
under Section 482 of the Code if a proper case is made out for the ends of justice".

11. In another decision reported in 2007(1) PLJR 822 Manish Gai v. State of Bihar, It has been
observed at paragraph- 5:-

"To say the least it appears that the learned SDJM has failed to exercise its jurisdiction which was
vested in him under Section 205 Cr.P.C. This Court in a case of Ram Harsh Das v. State of Bihar
reported in 1998(1) PLJR 502 has held that application of Section 205 Cr.P.C. does not end by
issuance of warrant of arrest if at the first instance summons were issued. To my mind law has not
changed since then. If summons are issued at the first instance and subsequently warrant of arrest is
issued even in such a situation the benefit of Section 205 Cr.P.C. is available. The Magistrate was
clearly wrong in his motion of law."

12. The Hon'ble Apex Court in a case S.V.

Majumdar & Ors v. Gujrat State Fertilizer Corporation Ltd & Anr. reported in 2005(4) SCC 173 at
paragraph-13 has held:-

"It has to be borne in mind that while dealing with an application in terms of Section 205 of the
Code the Court has to consider whether any useful purpose would be served by requiring the
personal attendance of the accused or whether the progress of the trial would be served by requiring
the personal attendance of the accused or whether the progress of the trial court is likely to be
hampered on account of his absence. We make it clear that if at any stage the trial court comes to the
conclusion that the accused persons are trying delay completion of trial it shall be free to refuse the
prayer for dispensing with personal attendance."

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 Rajesh Kumar Chaudhary @ Rajesh ... vs State Of Bihar on 13 March, 2012

13. Now coming to the facts of the case in hand admittedly, it happens to be a
complaint case wherein cognizance has been taken under Section 341, 323, and 379
of the IPC. There is no dispute as is evident from successive orders of the learned
lower court as well as from para-9 of the petition, petitioner is residing in U.S.A. In
that view of the matter, regular presence of the petitioner is neither feasible nor it
could be for any beneficiary purpose with the conduction of the trial. Hence, the
prayer of the petitioner is found to be just, legal, maintainable and is accordingly,
directed so.

14. Consequence thereupon, the successive orders passed by the learned lower court
is set aside. The petition is allowed however in the following terms:-

(a) petitioner will be sincerely represented by the learned counsel on each and every
date, (b) there should be no obstacle put at the behest of petitioner in smooth sailing
of the trial, (c) petitioner will not challenge his identification and (d) petitioner will
be physically present on the specific date so directed by the court in seisin.

(Aditya Kumar Trivedi, J) perwez./-

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