Exemption from personal appearance to be granted for reason of long distance between accused’s residence and place of trial

This March 2018 judgment from Supreme Court might just have created an important precedent and reasoning that a long distance between place of trial from residence of accused persons is a valid and reasonable ground for allowing exemption from personal appearance of accused in a criminal trial. The case pertains to IPC 498A and Dowry Prohibition act, however the judgment does not seem to be limited in its applicability, so it can be used for cases filed under other IPC sections, too.

Incidentally, the appellants/accused in this case are family members of Arnesh Kumar who was the appellant in the July 2014 SC judgment which had resulted in curtailing powers of police from conducting arbitrary arrests, and of magistrates from mechanically allowing arbitrary arrests. In a way, that judgment curtailed abuse of police's powers of arrest, and this judgment could curtail harassment of all members of accused husband's family from travel to court and appearance; when the reality is that large number of IPC 498A/406 type of cases are filed not by genuine complainants with desire for justice, but mainly by rogue females/in-laws who have gone into marriage only with a view towards getting a quick divorce and extorting a fat alimony settlement from husband and his family.

It is a bit difficult to analyze the judgment without knowing the dates and disposal of various applications filed. The timeline of various applications and their disposal is given below, as gleaned from the judgment itself.

……….<to be done>……….

The important points from judgment which can be noted are:

The appellants (all accused except accused No.1 Arnesh Kumar) had filed application for exemption from personal appearance in the criminal trial under IPC 498A and DP Act 4, on the ground of long distance of 1,750 km between their residence in Pune, and place of trial in Patna, Bihar.
It appears that no other ground like ill-health or old age etc of the appellants was raised - which flies in the face of conventional wisdom of advocates in using these points in bail and similar applications wherever accused are senior citizens. Also, using such a reasoning cannot work for those of the accused who are not senior citizens.
Supreme Court has noted down occupation of the appellants – parents who are retired, another who is a student, and another who is running a business, all of them residing in Pune.
However, the reasoning does not seem to be anything to do with disruption of business or studies etc of the various appellants, merely the fact about long distance between place of trial and residence of appellants. This is an interesting point because in trying to make an application strong, one would like to mention more number of points like age of accused, health condition, disruption to profession/business, and so on. The problem with that approach is that it won’t work so well for those of the accused who are retired.
Supreme court has rejected magistrate court’s reasoning to do with “hale and hearty” accused persons, and other technicalities raised by magistrate court and High Court of Patna. The point about conciliation and conjugal harmony seems absurd because criminal law is meant to punish the wrongdoers, and is not a mechanism to first drag husband and his whole family into criminal cases, and then hoping that pressure of arrest/criminal trial/appearance of accused will result in creating harmony! Also, the statement of objects and reasons of IPC 498A and Dowry Prohibition Act would not refer to creation of conjugal harmony as the objectives.

(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.

In any case, since the accused No. 1/husband had not applied for personal exemption from personal appearance, this reasoning of magistrate was also rejected by SC, since he could always be present at trial dates if that could lead to conciliation between the parties.

Ultimately, personal exemption to accused family members except husband has been granted in this case on sole fact of long distance between place of trial and residence.

So this judgment can be utilized by those accused in IPC 498A/406/Dowry Prohibition type of cases, especially all those apart from A1 (Accused No. 1) whose names are thrust into FIR mainly for purpose of bringing pressure on whole family of husband hoping for a quicker settlement and extortionary alimony for the crooked wife/in-laws.

It can be used by those accused of other crimes under IPC, too, if presence of some of the accused can be argued to be sufficient for purpose of trial.

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Full judgment text below:
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1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV & ORS. … APPELLANTS

VERSUS

TEH STATE OF BIHAR & ANR. … RESPONDENTS

J U D G M E N T

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 non-

bailable 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 trial under
this   Code,   if   the   Judge   or
Magistrate is satisfied, for reasons
to be recorded, that the personal
attendance of the accused before the
Court   is   not   necessary   in   the
interests of justice, or that the
accused   persistently   disturbs   the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such   inquiry   or   trial   in   his
absence, and may, at any subsequent
stage of the proceedings, direct the
personal attendance of such accused.
(2) If the accused in any such case
is not represented by a pleader, or

if the Judge or Magistrate considers
his personal attendance necessary,
he may, if he thinks fit and for
reasons to be recorded by him,
either adjourn such inquiry or
trial, or order that the case of
such accused be taken up or tried
separately.”

7. The Magistrate has rejected the application

filed under Section 205 Cr.P.C. on different

grounds as noticed above. The High Court took

entirely new grounds for dismissing the

application filed under Section 482 Cr.P.C.

without adverting to the grounds which were

taken by the Magistrate for declining the

prayer.

8. We first take up the grounds given by the

High Court for rejecting the application. The

High Court has observed that 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 and

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.

9. The High Court has noticed that the

accused had already appeared after obtaining

the order of pre-arrest bail and furnishing

bond and sureties to the satisfaction of the

court. The pre-arrest bail was granted to the

accused by the District and Sessions Judge by

order dated 21.06.2013 and thereafter the

accused appeared before the court as has been

noticed in paragraph 8 of the judgment of the

High court itself.

10. 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 205 Cr.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. We, thus, are of the view

that aforesaid ground given by the High Court

for rejecting the application is unfounded.

There is one more reason due to which the High

Court’s order cannot be sustained.

11. 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. which empowers the Magistrate, at any

stage of inquiry or trial for reasons to be

recorded to exempt attendance of the accused.

The Magistrate was not powerless to consider

the prayer under Section 317 Cr.P.C. as per the

view taken by the High Court. Thus, we do not

find any impediment in the power of the

Magistrate to consider the application of

accused for their exemption from personal

appearance.

12. Now, we advert to the reasons given by the

Magistrate for rejecting the application. As

noticed above, 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 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. We fail to see this

as any 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.

13. With regard to this ground it is sufficient

to notice that application under Section 482

Cr.P.C. was not filed by the husband, Arnesh

Kumar whose pre-arrest bail was already

rejected. The present appellants, thus, were

not pressing application under Section 482

Cr.P.C. for Arnesh Kumar, the husband who could

have very well participated in the proceedings.

Thus, the above ground was also not available

for rejection of the application. In the

application the grounds which were given by the

appellants was that, appellant No.1 father of

Arnesh Kumar 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. Arnesh Kumar, the husband 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, Ashok Kumar Yadav

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, we are of the view that

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.

14. In the result, the appeal is allowed, the

judgment and order of the High Court dated

17.04.2017 as well as order of the Sub-

Divisional Judicial Magistrate dated 13.08.2013

are set aside, application filed by the

appellants under Section 205 Cr.P.C. is

allowed. The personal appearance of the

appellants is exempted. This, however, shall

not preclude the Magistrate to pass appropriate

orders under Section 205(2) Cr.P.C. if and when

personal appearance of the appellants is

required.

..........................J.
( A.K. SIKRI )

..........................J.
NEW DELHI, ( ASHOK BHUSHAN )
MARCH 16, 2018.

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