IMPORTANT POINT
Court cannot make out a new case for rejecting an application.

JUDGMENT

ASHOK BHUSHAN, J.

This appeal has been filed against the judgment dated 17.04.2017 of the Patna High Court by which judgment application filed by the accused-appellants under Section 482 of the Code of Criminal Procedure challenging the order dated 13.08.2013 passed by the Sub- Divisional Judicial Magistrate, Patna has been dismissed by the High Court.

2. Brief facts necessary to be noted for deciding the appeal are:

The second respondent filed a complaint in the Court of Sub-Divisional Judicial Magistrate, Patna alleging offence committed by the accused as well as Arnesh Kumar, her husband. The Magistrate vide order dated 11.10.2012 finding a prima facie case under Section 498A and Section 4 of the Dowry Prohibition Act summoned the accused as well as Arnesh Kumar, husband of the complainant. The accused as well as Arnesh Kumar filed an application for anticipatory bail during the pendency of the said application. Non-bailable warrants were issued by the Magistrate on 23.12.2012. All the accused that is appellants as well as Arnesh Kumar filed an application dated 17.01.2013 praying for recall of nonbailable warrant and dispensing with their physical appearance in the case. It was appellants’ case that said application was filed because appellant No.1, father of Arnesh Kumar is a retired Army Official residing in Pune with appellant No.2 and other appellants were also residents of Pune, Maharashtra and they have to come from a distance. It was prayed by the accused that they be exempted from the personal appearance in the case. All the accused except Arnesh Kumar, husband of complainant were granted anticipatory bail. Anticipatory bail was granted by the District and Sessions Judge, Patna on 21.06.2013 to all the accused except Arnesh Kumar, husband of the complainant. The Sub-Divisional Magistrate by order dated 13.08.2013 rejected the application filed by the accused under Section 205 Cr.P.C.

3. While rejecting the application on 13.08.2013, the Magistrate gave the following reasons:

(i) Petitioners appear to be hale and hearty and are not suffering from any type of disease which may be impediment in appearing before the court.

(ii) Nature of offences requires that accused-petitioners and also the complainant should be present before the court preferably on each and every date expecting good sense prevails upon them.

(iii) Their appearance is also desirable for the purpose of conciliation since the very enactment of Section 498A of IPC and Dowry Prohibition Act primarily meant for restoration of conjugal harmony.

4. Challenging the order dated 13.08.2013, an application under Section 482 Cr.P.C. was filed which has been dismissed by the Patna High Court. The High Court dismissed the application taking a new ground that a prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused. Once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C., at a subsequent stage, such an application would not be maintainable. Aggrieved by the said order this appeal has been filed.

5. We have considered the submissions of the learned counsel for the parties and perused the records.

6. Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevant in this case are extracted:

“Section 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.

317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or