Back
2001 Supreme(Cal) 136
High Court Of Calcutta
Amit Talukdar, J.
Saumendra Kumar Biswas Alias S K Biswas : Appellant
Versus
Everest Agro Industries Pvt Ltd. : Respondent
C.R.R. No. 2162 of 2000
Decided On : March 08, 2001
Jaymalya Bagchi, Pramit Roy, S.K.Basu, Sudip Kumar Banerjee, Y. Dastur,
THE ACCUSED CANNOT CLAIM PERSONAL EXEMPTION UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE WITHOUT MAKING THE FIRST APPEARANCE.
Headnote:
SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE - PERSONAL EXEMPTION FROM APPEARANCE - SECTION 205, 138, 114 - IN A COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, THE ACCUSED CANNOT CLAIM PERSONAL EXEMPTION UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE WITHOUT MAKING THE FIRST APPEARANCE.
Fact of the Case:
THE PETITIONERS, WHO WERE DIRECTORS OF A COMPANY, WERE SUMMONED BY THE MAGISTRATE'S COURT TO ANSWER CHARGES UNDER SECTIONS 138 AND 114 OF THE NEGOTIABLE INSTRUMENTS ACT. THEY MOVED THE HIGH COURT FOR PERSONAL EXEMPTION FROM APPEARANCE UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE, WITHOUT MAKING THE FIRST APPEARANCE.
Finding of the Court:
THE HIGH COURT HELD THAT THE PETITIONERS COULD NOT CLAIM PERSONAL EXEMPTION UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE WITHOUT MAKING THE FIRST APPEARANCE. IT RELIED ON THE SUPREME COURT DECISION IN V. K. JAIN V. UNION OF INDIA, WHERE THE COURT HAD HELD THAT THE ACCUSED MUST APPEAR FIRST AND THEN PRAYER FOR PERSONAL EXEMPTION SHOULD BE MADE.
Issues: WHETHER THE PETITIONERS COULD CLAIM PERSONAL EXEMPTION UNDER SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE WITHOUT MAKING THE FIRST APPEARANCE.
Ratio Decidendi: THE COURT HELD THAT SECTION 205 OF THE CODE OF CRIMINAL PROCEDURE GIVES DISCRETION TO THE MAGISTRATE TO GRANT PERSONAL EXEMPTION FROM APPEARANCE, BUT IT IS NOT A MATTER OF RIGHT. THE COURT FURTHER HELD THAT THE DECISION OF THE SUPREME COURT IN V. K. JAIN V. UNION OF INDIA IS BINDING ON THE HIGH COURT AND IT CANNOT BE DISTINGUISHED ON THE GROUND THAT IT WAS A DECISION ON FACTS.
Final Decision: THE HIGH COURT DISMISSED THE PETITION AND DIRECTED THE MAGISTRATE TO PROCEED WITH THE TRIAL WITH UTMOST DISPATCH.
1. THIS revisional application is directed against an order dated July 11,2000 passed by the learned Metropolitan Magistrate, 15th court, Calcutta, in connection with Case No. C-87 of 2000 thereby directing the petitioners above named who have been arrayed in a Case No. C-87/2000 before the said Court on the basis of a petition of complaint filed on behalf of the opposite party No. l to answer accusation of having committed the offence punishable under Sections 138/114 of the Negotiable Instruments act to first appear in Court before their prayer for personal exemption can be considered.
2. THE sole point of determination in this application is efficacy of he order of July 11, 2000 passed by the learned Magistrate directing the petitioners to first appear and thereafter their prayer for personal exemption under Section 205 of the Code of Criminal Procedure would be considered in terms of a decision of the Hon'ble Supreme Court in the case of V. K. Jain v. Union of India (2001) 1 SCC 709
The learned senior Counsel appearing in support of this application has submitted that the petitioners are busy, corporate executives and it would be difficult for them to attend the proceeding in the Court below as they were pre-occupied with their avocation. It has further been submitted that the petitioners who are the erstwhile directors of the company having since relinquished their membership from the Board, were in no way connected with the offence alleged against them and apart from the fact that they were not members of the Board at the relevant point of time when the infraction in respect of Section 138 of the said. Act was committed, it would be in the fitness of things that the liberty to personal exemption under Section 205 of the Code of Criminal Procedure should be granted in their favour as there is no question of personal identification involved.
3. THE leaned Counsel appearing on behalf of the opposite parties no. 1 and 3 on instruction submits that he has no objection if the petitioners are directed to be represented under Section 205 of the Code of Criminal procedure during the trial; but he only prays for expeditious conclusion of the said proceeding.
4. LET me now consider the submission of the learned Counsel appearing on behalf of the parties in the light of the legal position as enunciated in Section 205 of the Code of Criminal Procedure barging out of the instructional concession of the opposite parties.
It appears from a plain reading of the order impugned passed by the learned Magistrate that the accused-petitioners' prayer for personal exemption under Section 205 of the Code of Criminal Procedure was kept in abeyance consequent to their appearance before the Court in view of the decision of V. K. Jain (supra) and the learned Magistrate directed, "in view of the decision of the Hon'ble Supreme Court reported in (2000) 1 SCC 709 the petition under Section 205 of the Cr. P. C. can be considered after appearance of the accused-persons in Court. As such the accused persons are directed to appear before the Court for consideration of the petition under Section 205 of the Code of Criminal Procedure. " I find that the learned magistrate has not committed any illegality by passing the impugned order as the Hon'ble Supreme Court in the case of V. K. Jain (supra) has held that,
"we permit the petitioner to move the Court concerned (before which the prosecution is pending in any of the cases) for exempting him from personal appearance. This can be done only after making the first appearance in the court concerned. If any such application is filed by the petitioner, we direct the Court concerned to exempt him from personal appearance on the following conditions: (1) A Counsel on his behalf would be present in the, particular Court on days when his case is taken up; (2) He will not dispute his identity and (3) He will be present in Court when such presence is imperatively needed. "
5. IN view of the ratio of the said decis
