Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1901 OF 2019
[Arising out of SLP (Crl.) No. 8136 of 2018]
Puneet Dalmia .. Appellant
Versus
Central Bureau of Investigation, Hyderabad .. Respondent
J U D G M E N T
M. R. Shah, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 10.09.2018 passed by the High Court for
the State of Telangana and the State of Andhra Pradesh at
Hyderabad in Criminal Petition No. 3880 of 2016, by which the
High Court has dismissed the said application and has rejected the
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.12.16
16:46:42 IST
Reason:
prayer of the appellant for dispensation with his personal
appearance/attendance in a case that pertains to the chargesheet
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bearing C.C. No. 12 of 2013, one of the original accused in the
aforesaid case has preferred the present appeal.
3. That the appellant is accused No. 3 in the case pertaining to
the chargesheet bearing C.C. No. 12 of 2013 pending before the
learned Principal Special Judge for CBI Cases, Hyderabad. That the
appellant was summoned by the learned Trial Court vide order
dated 13.05.2013 for the offences punishable under Sections 120B
read with Sections 420, 409 IPC and Sections 9, 12, 13(2) read with
13(1)(c) and (s) 12 of the Prevention of Corruption Act. That, by an
order dated 07.06.2019 the appellant has been granted the bail.
However, pursuant to the directions issued by the High Court, the
appellant is required to attend the learned Trial Court on every
Friday. It is the case on behalf of the appellantoriginal accused No.
3 that since 2013 the appellant has been remaining present before
the learned Trial Court on every Friday.
3.1 That the appellant submitted an application before the learned
Trial Court under Section 205 of the Cr.P.C. for dispensing with his
personal appearance/attendance. It was submitted on behalf of the
appellant that he is the Director on the boards of several companies
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and is preoccupied with the management and attending daytoday
affairs on account of business exigencies of the companies. It was
also submitted on behalf of the appellant that for attending the
learned Trial Court on every Friday, he is required to travel from
Delhi to Hyderabad spending not less than two days. Therefore, it
was the case on behalf of the appellant that on account of posting
the case on every Friday, he has been facing undue hardship in
meeting his business commitments, in addition to continuous
financial loss being caused to him. Therefore, it was prayed to
dispense with his appearance permitting his counsel Sri Bharadwaj
Reddy to appear on his behalf.
3.2 The said application was opposed by the respondentCBI. It
was submitted on behalf of the CBI that the grounds on which the
appellant has requested to dispense with his appearance before the
learned Trial Court are not germane and cannot be a ground to
dispense with his appearance before the learned Trial Court under
Section 205 Cr.P.C. It was also contended on behalf of the CBI that
the appellant is facing very serious charges/offences. The learned
Principal Special Judge for CBI Cases, Hyderabad dismissed the
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said application. Aggrieved by the order passed by the learned Trial
Court, the appellant preferred a petition before the High Court. By
the impugned judgment and order, the High Court has dismissed
the said petition and has confirmed the order passed by the learned
Trial Court rejecting the application submitted by the appellant and
has refused the exemption from personal appearance of the
appellant before the learned Trial Court. Hence, the present appeal.
4. Shri Mukul Rohatgi and Shri Neeraj Kishan Kaul, learned
Senior Advocates appearing on behalf of the appellant have
vehemently submitted that, in the facts and circumstances of the
case, the High Court as well as the learned Trial Court have
committed a grave error in not allowing the application submitted
by the appellant from exempting him to appear before the learned
Trial Court on every Friday.
4.1 It is vehemently submitted by the learned Senior Advocates
appearing on behalf of the appellant that since 2013, on every
Friday, the appellant is attending the learned Trial Court and the
chargesheet is already filed. It is submitted that the trial is not
likely to be concluded at the earliest as 13 chargesheets are filed in
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this case arising out of the same FIR and there are number of
accused. It is submitted that the appellant is ready and willing to
file an undertaking that nonappearance of the appellant before the
learned Trial Court, on the exemption being granted, shall not come
in the way of proceeding with the trial and that he shall appear
through advocate and that he has no objection if the evidence is
recorded in his absence. It is submitted on behalf of the appellant
that he shall remain present before the Court as and when required
and ordered by the learned Trial Court. It is further submitted on
behalf of the appellant that he is ready and willing to abide by any
other conditions which may be imposed by this Court and which
may deem fit and proper.
4.2 It is further submitted by the learned Counsel appearing on
behalf of the appellant that in fact the learned Trial Court has
already granted permanent exemption from personal appearance to
two of the accused persons in cases arising out of the same FIR and
on the ground of their business commitments, though in fact both
of them are based at Hyderabad only.
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4.3 The learned counsel appearing on behalf of the appellant has
also relied upon the decisions of this Court in Bhaskar Industries
(2001) 7 SCC 401 and
Ltd. V. Bhiwani Denim & Apparels Ltd.
Rameshwar Yadav V. State of Bihar (2018) 4 SCC 608 in support
of the prayer to dispense with the presence of the appellant before
the learned Trial Court on every Friday.
4.4 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to allow the present appeal and
consequently allow the application submitted by the appellant for
dispensation with his personal appearance before the learned Trial
Court.
5. The present appeal is vehemently opposed by Shri Vikramjit
Banerjee, learned ASG appearing on behalf of the respondentCBI.
5.1 It is vehemently submitted by Shri Banerjee, learned ASG
appearing on behalf of the respondentCBI that, as rightly held by
the learned Trial Court as well as the High Court, the grounds on
which the appellant has requested to dispense with his personal
appearance, namely, on account of business commitments and pre
occupation in connection with his business activities and
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inconvenience being caused to the appellant to appear before the
learned Trial Court, are not valid grounds for allowing the
application under Section 205 Cr.P.C.
5.2 It is further submitted by Shri Banerjee, learned ASG that in
fact the High Court has specifically observed that if the appellant is
exempted from personal appearance before the learned Trial Court,
in that case, after such an exemption is granted, he may not co
operate in proceeding further with the trial and that the trial will be
delayed. It is submitted that the appellantaccused and others are
involved in the grave offences causing dent to the economy of the
State and affecting the economy of the country. It is submitted
that, therefore, the trial is required to be concluded at the earliest.
It is submitted that in the impugned judgment and order the High
Court has specifically observed and considered the conduct on the
part of the appellant as well as the other accused causing delay in
concluding the trial. It is therefore submitted that no case is made
out to exempt the appellant from appearing before the learned Trial
Court.
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5.3 Now, so far as the reliance placed by the learned counsel
appearing on behalf of the appellant upon the decisions of this
Court in (supra) and
Bhaskar Industries Ltd. Rameshwar Yadav
(supra) is concerned, it is submitted by the learned ASG that the
said decisions shall not be applicable to the facts of the case on
hand looking to the graveness and seriousness of the offences
involved. It is submitted that in (supra),
Bhaskar Industries Ltd.
it was a case for the offence under Section 138 of the Negotiable
Instruments Act and in Rameshwar Yadav (supra), it was a case
for the offences under Section 498A IPC and Section 4 of the
Dowry Prohibition Act. It is submitted that, in the present case, the
allegations against the appellant are for the offences punishable
under Sections 120B read with Sections 420 and 409 IPC and
Sections 9, 12, 13(2) read with Sections 13(1)(c) and (d) of the
Prevention of Corruption Act. Therefore, it is prayed to dismiss the
present appeal.
6. Heard learned Counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that the
appellant is required to appear before the learned Trial Court on
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every Friday and the appellant as such is appearing before the
learned Trial Court on each and every Friday since 2013. Nothing
is on record that at any point of time the appellant has tried to
delay the trial. The appellant is represented through his counsel.
The appellant is a permanent resident of Delhi. He is the Director
on the Boards of several companies. The distance between Delhi
and Hyderabad is approximately 1500 kms. Therefore, the
appellant sought for exemption from personal appearance before
the learned Trial Court on each and every Friday and submitted the
application under Section 205 Cr.P.C. and submitted that on all
dates of adjournments, his counsel Sri Bharadwaj Reddy shall
appear and no adjournment shall be asked for on his behalf. In
the cases of Bhaskar Industries Ltd. (supra) and Rameshwar
(supra), this Court had the occasion to consider the scope
Yadav
and ambit of the application under Section 205 Cr.P.C. In the case
of Bhaskar Industries Ltd. (supra), this Court has observed that if
a Court is satisfied that in the interest of justice the personal
attendance of an accused before it need not be insisted on, then the
court has the power to dispense with the attendance of the accused.
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It is further observed by this Court in the aforesaid decision that if
a court feels that insisting on the personal attendance of an
accused in a peculiar case would be too harsh on account of a
variety of reasons, the court can grant relief to such an accused in
the matter of facing the prosecution proceedings. It is observed
and held by this Court in the aforesaid decision that the normal
rule is that the evidence shall be taken in the presence of the
accused. However, even in the absence of the accused, such
evidence can be taken but then his counsel must be present in the
court, provided he has been granted exemption from attending the
court. In Paragraphs 14, 17, 18 and 19, this Court has observed
and held as under:
“14. The normal rule is that the evidence shall be
taken in the presence of the accused. However, even
in the absence of the accused such evidence can be
taken but then his counsel must be present in the
court, provided he has been granted exemption from
attending the court. The concern of the criminal
court should primarily be the administration of
criminal justice. For that purpose the proceedings of
the court in the case should register progress.
Presence of the accused in the court is not for
marking his attendance just for the sake of seeing
him in the court. It is to enable the court to proceed
with the trial. If the progress of the trial can be
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achieved even in the absence of the accused the
court can certainly take into account the magnitude
of the sufferings which a particular accused person
may have to bear with in order to make himself
present in the court in that particular case.
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.
A question could legitimately be asked —
18.
what might happen if the counsel engaged by the
accused (whose personal appearance is dispensed
with) does not appear or that the counsel does not
cooperate in proceeding with the case? We may
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point out that the legislature has taken care of such
eventualities. Section 205(2) says that the
Magistrate can in his discretion direct the personal
attendance of the accused at any stage of the
proceedings. The last limb of Section 317(1) confers
a discretion on the Magistrate to direct the personal
attendance of the accused at any subsequent stage
of the proceedings. He can even resort to other steps
for enforcing such attendance.
19. The position, therefore, boils down to this: 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. We may reiterate that
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.”
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It is true that in the aforesaid two cases before this Court, the
offences alleged were less serious offences than alleged in the
present case. However, the principles for grant of exemption as
observed by this Court in the case of
Bhaskar Industries Ltd.
(supra) can be made applicable to the facts of the case on hand also
and the appellant can be granted the exemption on certain
conditions and on filing an undertaking by the appellant, by which
the interest of justice can be protected and grant of exemption may
not ultimately affect the conclusion of the trial at the earliest. At
this stage, it is required to be noted that nothing is on record that,
at any point of time, any effort has been made by the appellant to
stall/delay the trial. At this stage, it is required to be noted that in
case of other two coaccused in cases arising of the same FIR, the
applications for exemption on the very same grounds have been
allowed – one by the High Court and another by the learned Trial
Court.
7. In view of the above and for the reasons stated above and
considering the facts and circumstances of the case, the present
appeal is allowed. The impugned Judgment and order passed by
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the High Court as well as that of the learned Trial Court rejecting
the application submitted by the appellant under Section 205
Cr.P.C. are hereby quashed and set aside and consequently the
application submitted by the appellant to dispense with his
appearance before the learned Trial Court on all dates of
adjournments and permitting his counsel Sri Bharadwaj Reddy to
appear on his behalf is herby allowed on the following conditions:
(1) That the appellant shall give an undertaking to the learned
Trial Court that he would not dispute his identity in the case
and that Sri Bharadwaj Reddyadvocate who is permitted to
represent the appellant, would appear before the learned Trial
Court on his behalf on each and every date of hearing and that
he shall not object recording of the evidence in his absence
and that no adjournment shall be asked for on behalf of the
appellant and/or his advocate Sri Bharadwaj Reddy;
(2) That the appellant shall appear before the learned Trial Court
for the purpose of framing of the charges and also on other
hearing dates whenever the learned Trial Curt insists for his
appearance;
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(3) If there is any failure on the part of the advocate Sri
Bharadwaj Reddy, who is to represent the appellant, either to
appear before the learned Trial Court on each adjournment
and/or any adjournment is sought on behalf of the appellant
and/or if the learned Trial Court is of the opinion that the
appellant and/or his advocate is trying to delay the trial, in
that case, it would be open for the learned Trial Court to
exercise its powers under Section 205 (2) Cr.P.C. and direct
the appearance of the appellant on each and every date of
adjournment.
The present appeal is disposed of in the aforesaid terms.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
December 16, 2019.