Code of Criminal Procedure, 1973 – ss. 205 and 482 – Second respondent filed complaint against her husband and the accused-appellants (parents-in-law and two others) u/s. 498A IPC and s.4 of the Dowry Prohibition Act – Magistrate summoned the accused-appellants as well as the husband of the complainantsecond respondent – Accused-appellants filed application to dispense with their physical appearance in the case – Application rejected by the Magistrate u/s. 205 – Order of the Magistrate challenged u/s.482 before the High Court, which was dismissed – On appeal, held: The observation of the High Court that the accused-appellants have filed application u/s. 205 at a subsequent stage after appearing before the Court is factually incorrect – Application u/s. 205 was filed by the accused-appellants prior to the appearance in the Court – The grant of exemption from personal appearance in the Court on each and every date was required to be considered in view of the fact that application was filed much before their appearance in the Court – Further, Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused-appellants before the Court – The views of the High Court for rejecting the application were unfounded – On the other hand Magistrate also, while rejecting the application, failed to consider the actual grounds given by the accusedappellants for seeking exemption – In application the grounds were that appellant no.1, father of complainant’s husband, appellant no.2 (wife of appellant no. 1), appellant no.3 and 4 were residing at Pune – The distance between residence of the accused-appellants and the place of trial at Patna is 1750 kms – Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application u/s. 205 and s.482, sufficient grounds were made out for granting exemption from personal appearance of the accused-appellants in the trial – Penal Code, 1860 – s. 498-A – Dowry Prohibition Act, 1961 – s.4. Allowing the appeal, the Court
HELD: 1. The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section
205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. Thus, the aforesaid ground given by the High Court for rejecting the application is unfounded. [Para 10] [1060-H; 1061-A-C]
2. There is one more reason due to which the High Court’s order cannot be sustained. The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. There is no impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance. [Paras 10, 11] [1061-C-E]
3. Now, adverting to the reasons given by the Magistrate for rejecting the application. First reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out ANR.
of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. This is not a valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable. With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband of complainant whose pre-arrest bail was already rejected. The appellants, thus, were not pressing application under Section
482 Cr.P.C. for husband of complainant who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. [Paras 12, 13] [1061F-H; 1062-A-B]
4. In the application the grounds which were given by the appellants was that, appellant No.1 husband of complainant is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Husband of complainant was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3 was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section
205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides. [Para 13] [1062-B-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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