1997 Supreme(MP) 901

IN THE HIGH COURT OF MADHYA PRADESH
RAJEEV GUPTA, J.
Sarla Jain (Smt.) - Appellant
Vs.
Smt. Reeta Jain - Respondents
Misc. Cr. Case No. 1144 of 1996 (J)
Decided On : 05-12-1997

Headnote:(1) Criminal Procedure Code, 1973 – S. 205 – one of the accused an old lady residing far from Court – another also residing far from Court and in service – no dispute as to identity – exemption should be granted.

       (2) Criminal Procedure Code, 1973 – S. 482 – Courts below not considering issue of exemption from personal appearance in its proper perspective – High Court would exercise inherent powers because of exceptional case.

        Short Note

       1. A petty matter of grant of exemption has travelled upto this Court through this petition, filed by the petitioners/accused persons, under section 482 CrPC.

       2. Non – petitioner No. 1 Smt. Reeta Jain, who is the wife of petitioner No. 2 Vikas Kumar Jain, and daughter – in – law of petitioner No. 1 Smt. Sarla Jain, had filed a criminal complaint against them alleging commission of the offence under section 406 of the Indian Penal Code.

       3. The trial Court, on considering the allegations and the evidence led by the complainant, in support of those allegations, found a 'prima facie' case against the accused persons, and therefore, directed the registration of the complaint and issuance of process against the petitioners. After the service of the process, the petitioners/accused persons appeared before the trial Court, and were released on bail on their furnishing personal bonds and bail bonds. Thereafter, the petitioners filed an application, purporting to be one under section 205 CrPC, for grant of exemption. The grounds, pressed into service, for the above relief were that petitioner No. 1 Smt. Sarla Jain is an old woman residing in Ghaziabad, which is at a considerable distance from Bhopal, and that petitioner No. 2 Vikas Kumar Jain was serving at Bangalore and had to come on the dates after taking leave, which was causing great hardship and expenses to them.

       4. The above application was dismissed by the trial Court vide order dated 6.5.95, without assigning any cogent reason for the dismissal.

       5. Being aggrieved of the above dismissal, of their application, the petitioners filed a revision petition before the Court of Sessions. The learned Additional Sessions Judge, vide the impugned order dated 19.12.95, had affixed the stamp of approval on the above scanty order of the trial Court, dismissing the petitioners application for grant of exemption.

       6. It is now almost settled that the Court's, as far as possible, should be liberal in granting exemption to the accused persons on the dates when the presence of the accused persons is not required. In the present case there does not appear any dispute about the identity of the accused persons. As such there does not appear any reason for not granting exemption to the petitioners, particularly when the trial Court did not find the grounds, mentioned in the application, factually incorrect.

       7. The revisional Court has also failed in its duty by not considering the case in its proper perspective, and affirming the trial Courts unreasoned order.

       8. On perusing the complaint, a copy whereof was made available by the learned counsel for the non – petitioner No. 1 during the course of his submission, it is found that petitioner No. 1 Smt. Sarla Jain has been shown as resident of Ghaziabad, whereas petitioner No. 2 Vikas Kumar Jain has been shown as residing at Bangalore. The fact that petitioner No. 1 Smt. Sarla Jain is a woman of advanced age, is ex – facie apparent from the fact that her son petitioner No. 2 Vikas Kumar Jain, has been described as aged 34 years. Admittedly, there is no dispute about the identification of the petitioners at the trial.

       9. In view of the above mentioned broad features of the case, sufficient grounds for grant of exemption to the petitioners exist on record, and the trial Court ought to have granted exemption to the petitioners. The trial Court, in dismissing the petitioner's application for grant of exemption, without assigning any reason, has committed serious illegality. The revisional Court has though passed an order running into more than three pages, but has failed in giving due weight to the above grounds mentioned in the application filed by the petitioners for grant of exemption. As both the Court's below have failed in considering the issue of grant of exemption in the proper perspective, an exceptional case, warranting interference by this Court in exercise of its inherent powers under section 482 CrPC, is made out.

       10. For the foregoing reasons, the petition, filed by the petitioners under section 482 CrPC, is allowed. The order dated 6.5.95, passed by the trial Court dismissing the petitioner's application, and the impugned order dated 19.12.95 passed by Vth Additional Sessions Judge, Bhopal, in Criminal Revision No. 157/95, are hereby set aside. Petitioners Smt. Sarla Jain and Vikas Kumar Jain, are granted exemption from personal appearance on the dates of hearing before the trial Court. The trial Court, however, shall be at liberty to direct the petitioners to remain present on such dates of hearing in the case whenever their presence is found necessary by the trial Court, such as at the stage of framing of charges, if the charges have already not been framed, and for their examination under section 313 CrPC, and at the time of the passing of the final judgment of the case.

       11. Let a copy of this order be sent to the Court of Additional Chief Judicial Magistrate, Bhopal, in whose Court R.T. No. 1566/97 is pending, for necessary compliance and for proceeding further according to law.