PUNEET DALMIAversusCENTRAL BUREAU OF INVESTIGATION, HYDERABAD

134                      [2019]REPORTS
               SUPREME COURT    15 S.C.R. 134             [2019] 15 S.C.R.


A                             PUNEET DALMIA
                                        v.
         CENTRAL BUREAU OF INVESTIGATION, HYDERABAD
                       (Criminal Appeal No. 1901 of 2019)
B                            DECEMBER 16, 2019
                [ASHOK BHUSHAN AND M. R. SHAH, JJ.]
             Code of Criminal Procedure, 1973 – s.205 – Appellant is
      accused no.3 in the case pertaining to the charge-sheet bearing
      C.C. No. 12 of 2013 pending before the Principal Special Judge
C
      for CBI Cases, Hyderabad – Granted bail – However, pursuant to
      the directions issued by the High Court, the appellant is required to
      attend the Trial Court on every Friday – Appellant made application
      before the Trial Court u/s.205 for dispensing with his personal
      appearance/attendance –Dismissed – Confirmed by the High Court
D     – On appeal, held: Appellant, a permanent resident of Delhi, is the
      Director on the Boards of several companies and has been appearing
      before the Trial Court on each and every Friday since 2013 –
      Distance between Delhi and Hyderabad is approximately 1500 kms
      – Nothing is on record that at any point of time he has tried to delay
      the trial – In view of principles for grant of exemption as observed
E
      by Supreme Court in Bhaskar Industries Ltd. Case, the appellant can
      be granted the exemption on certain conditions and on filing an
      undertaking, by which the interest of justice can be protected and
      grant of exemption may not ultimately affect the conclusion of the
      trial at the earliest – Further, in case of other two co-accused in
F     cases arising of the same FIR, the applications for exemption on
      the very same grounds were allowed, one by the High Court and
      another by the Trial Court – Judgment passed by the High Court as
      well as the Trial Court rejecting the appellant’s application u/s.205
      are quashed and set aside – Thus, application of the appellant for
      dispensing with his appearance before the Trial Court on all dates
G
      of adjournments and permitting his counsel to appear on his behalf
      is allowed, conditionally – Penal Code, 1860 – s.120-B r/w ss.420,
      409 – Prevention of Corruption Act, 1988 – ss.9, 12, 13(2) r/w
      13(1)(c) and (d).

H
                                       134
         PUNEET DALMIA v. CENTRAL BUREAU OF                             135
             INVESTIGATION, HYDERABAD

      Disposing of the appeal, the Court                                A
       HELD: 1.1 The appellant is required to appear before the
Trial Court on every Friday and the appellant as such is appearing
before the Trial Court on each and every Friday since 2013.
Nothing is on record that at any point of time the appellant has
tried to delay the trial. The appellant is represented through his      B
counsel. The appellant is a permanent resident of Delhi. He is
the Director on the Boards of several companies. The distance
between Delhi and Hyderabad is approximately 1500 kms.
However, the principles for grant of exemption as observed by
this Court in the case of Bhaskar Industries Ltd. can be made           C
applicable to the facts of the case on hand also and the appellant
can be granted the exemption on certain conditions and on filing
an undertaking by the appellant, by which the interest of justice
can be protected and grant of exemption may not ultimately affect
the conclusion of the trial at the earliest. Nothing is on record       D
that, at any point of time, any effort has been made by the appellant
to stall/delay the trial. In case of other two co-accused in cases
arising of the same fir, the applications for exemption on the very
same grounds have been allowed – one by the high court and
another by the trial court. [Para 6][140-D-E; 142F-H; 143-A]            E
      1.2 The impugned Judgment and order passed by the High
Court as well as that of the Trial Court rejecting the application
submitted by the appellant under Section 205 Cr.P.C. are hereby
quashed and set aside and consequently the application submitted
by the appellant to dispense with his appearance before the Trial       F
Court on all dates of adjournments and permitting his counsel to
appear on his behalf is allowed on the following conditions: (1)
That the appellant shall give an undertaking to the Trial Court
that he would not dispute his identity in the case and that the
advocate who is permitted to represent the appellant, would             G
appear before the Trial Court on his behalf on each and every
date of hearing and that he shall not object recording of the
evidence in his absence and that no adjournment shall be asked
for on behalf of the appellant and/or his advocate;
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136            SUPREME COURT REPORTS                     [2019] 15 S.C.R.


A            (2) That the appellant shall appear before the Trial Court
      for the purpose of framing of the charges and also on other hearing
      dates whenever the Trial Court insists for his appearance; (3) If
      there is any failure on the part of the advocate who is to represent
      the appellant, either to appear before the Trial Court on each
B     adjournment and/or any adjournment is sought on behalf of the
      appellant and/or if the Trial Court is of the opinion that the
      appellant and/or his advocate is trying to delay the trial, in that
      case, it would be open for the Trial Court to exercise its powers
      under Section 205(2) Cr.P.C. and direct the appearance of the
      appellant on each and every date of adjournment. [Para 7][143-
C     B-G]

            Bhaskar Industries Ltd. V. Bhiwani Denim & Apparels
            Ltd. (2001) 7 SCC 401 : [2001] 2 Suppl. SCR 219 –
            relied on.
D
            Rameshwar Yadav V. State of Bihar (2018) 4 SCC 608
            : [2018] 4 SCR 1055 – referred to.

                             Case Law Reference

E     [2001] 2 Suppl. SCR 219        relied on               Para 4.3

      [2018] 4 SCR 1055              referred to             Para 4.3

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1901 of 2019.
F
            From the Judgment and Order dated 10.09.2018 of the High
      Court at Hyderabad for the State of Telangana and State of Andhra
      Pradesh in Crl. P. No. 3880 of 2016.

           Ajay Bhargava, Mrs. Vanita Bhargava, Ms. Trishala Trivedi, Karan
G     Gupta, M/S. Khaitan & Co., Advs. for the Appellant.

           Vikramjit Banerjee, ASG, R. Bala, Sr. Adv., Joydip Roy, Sachin
      Sharma, Ms. Shruti Agarwal, Arvind Kumar Sharma, Advs. for the
      Respondent.
H
          PUNEET DALMIA v. CENTRAL BUREAU OF                                  137
              INVESTIGATION, HYDERABAD

      The Judgment of the Court was delivered by                              A
      M. R. Shah, J.
      1. Leave granted.
       2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 10.09.2018 passed by the High Court for the State of          B
Telangana and the State of Andhra Pradesh at Hyderabad in Criminal
Petition No. 3880 of 2016, by which the High Court has dismissed the
said application and has rejected the prayer of the appellant for
dispensation with his personal appearance/attendance in a case that
pertains to the charge-sheet bearing C.C. No. 12 of 2013, one of the
original accused in the aforesaid case has preferred the present appeal.      C

       3. That the appellant is accused No. 3 in the case pertaining to the
charge-sheet bearing C.C. No. 12 of 2013 pending before the learned
Principal Special Judge for CBI Cases, Hyderabad. That the appellant
was summoned by the learned Trial Court vide order dated 13.05.2013
for the offences punishable under Sections 120-B read with Sections           D
420, 409 IPC and Sections 9, 12, 13(2) read with 13(1)(c) and (s) 12 of
the Prevention of Corruption Act. That, by an order dated 07.06.2019
the appellant has been granted the bail. However, pursuant to the
directions issued by the High Court, the appellant is required to attend
the learned Trial Court on every Friday. It is the case on behalf of the      E
appellant-original accused No. 3 that since 2013 the appellant has been
remaining present before the learned Trial Court on every Friday.
       3.1 That the appellant submitted an application before the learned
Trial Court under Section 205 of the Cr.P.C. for dispensing with his
personal appearance/attendance. It was submitted on behalf of the             F
appellant that he is the Director on the boards of several companies and
is pre-occupied with the management and attending day-to-day affairs
on account of business exigencies of the companies. It was also submitted
on behalf of the appellant that for attending the learned Trial Court on
every Friday, he is required to travel from Delhi to Hyderabad spending
not less than two days. Therefore, it was the case on behalf of the           G
appellant that on account of posting the case on every Friday, he has
been facing undue hardship in meeting his business commitments, in
addition to continuous financial loss being caused to him. Therefore, it
was prayed to dispense with his appearance permitting his counsel Sri
Bharadwaj Reddy to appear on his behalf.
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138             SUPREME COURT REPORTS                           [2019] 15 S.C.R.


A            3.2 The said application was opposed by the respondent-CBI. It
      was submitted on behalf of the CBI that the grounds on which the appellant
      has requested to dispense with his appearance before the learned Trial
      Court are not germane and cannot be a ground to dispense with his
      appearance before the learned Trial Court under Section 205 Cr.P.C. It
      was also contended on behalf of the CBI that the appellant is facing
B
      very serious charges/offences. The learned Principal Special Judge for
      CBI Cases, Hyderabad dismissed the said application. Aggrieved by the
      order passed by the learned Trial Court, the appellant preferred a petition
      before the High Court. By the impugned judgment and order, the High
      Court has dismissed the said petition and has confirmed the order passed
C     by the learned Trial Court rejecting the application submitted by the
      appellant and has refused the exemption from personal appearance of
      the appellant before the learned Trial Court. Hence, the present appeal.
             4. Shri Mukul Rohatgi and Shri Neeraj Kishan Kaul, learned Senior
      Advocates appearing on behalf of the appellant have vehemently
D     submitted that, in the facts and circumstances of the case, the High
      Court as well as the learned Trial Court have committed a grave error in
      not allowing the application submitted by the appellant from exempting
      him to appear before the learned Trial Court on every Friday.
             4.1 It is vehemently submitted by the learned Senior Advocates
E     appearing on behalf of the appellant that since 2013, on every Friday, the
      appellant is attending the learned Trial Court and the charge-sheet is
      already filed. It is submitted that the trial is not likely to be concluded at
      the earliest as 13 charge-sheets are filed in this case arising out of the
      same FIR and there are number of accused. It is submitted that the
      appellant is ready and willing to file an undertaking that non-appearance
F     of the appellant before the learned Trial Court, on the exemption being
      granted, shall not come in the way of proceeding with the trial and that
      he shall appear through advocate and that he has no objection if the
      evidence is recorded in his absence. It is submitted on behalf of the
      appellant that he shall remain present before the Court as and when
G     required and ordered by the learned Trial Court. It is further submitted
      on behalf of the appellant that he is ready and willing to abide by any
      other conditions which may be imposed by this Court and which may
      deem fit and proper.
            4.2 It is further submitted by the learned Counsel appearing on
H     behalf of the appellant that in fact the learned Trial Court has already
          PUNEET DALMIA v. CENTRAL BUREAU OF                                     139
        INVESTIGATION, HYDERABAD [M. R. SHAH, J.]

granted permanent exemption from personal appearance to two of the               A
accused persons in cases arising out of the same FIR and on the ground
of their business commitments, though in fact both of them are based at
Hyderabad only.
       4.3 The learned counsel appearing on behalf of the appellant has
also relied upon the decisions of this Court in Bhaskar Industries Ltd.          B
V. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401 and Rameshwar
Yadav V. State of Bihar (2018) 4 SCC 608 in support of the prayer to
dispense with the presence of the appellant before the learned Trial
Court on every Friday.
      4.4 Making the above submissions and relying upon the above                C
decisions of this Court, it is prayed to allow the present appeal and
consequently allow the application submitted by the appellant for
dispensation with his personal appearance before the learned Trial Court.
      5. The present appeal is vehemently opposed by Shri Vikramjit
Banerjee, learned ASG appearing on behalf of the respondent-CBI.
                                                                                 D
       5.1 It is vehemently submitted by Shri Banerjee, learned ASG
appearing on behalf of the respondent-CBI that, as rightly held by the
learned Trial Court as well as the High Court, the grounds on which the
appellant has requested to dispense with his personal appearance, namely,
on account of business commitments and pre-occupation in connection
with his business activities and inconvenience being caused to the               E
appellant to appear before the learned Trial Court, are not valid grounds
for allowing the application under Section 205 Cr.P.C.
       5.2 It is further submitted by Shri Banerjee, learned ASG that in
fact the High Court has specifically observed that if the appellant is
exempted from personal appearance before the learned Trial Court, in             F
that case, after such an exemption is granted, he may not co-operate in
proceeding further with the trial and that the trial will be delayed. It is
submitted that the appellant-accused and others are involved in the grave
offences causing dent to the economy of the State and affecting the
economy of the country. It is submitted that, therefore, the trial is required   G
to be concluded at the earliest. It is submitted that in the impugned
judgment and order the High Court has specifically observed and
considered the conduct on the part of the appellant as well as the other
accused causing delay in concluding the trial. It is therefore submitted
that no case is made out to exempt the appellant from appearing before
the learned Trial Court.                                                         H
140             SUPREME COURT REPORTS                            [2019] 15 S.C.R.


A            5.3 Now, so far as the reliance placed by the learned counsel
      appearing on behalf of the appellant upon the decisions of this Court in
      Bhaskar Industries Ltd. (supra) and Rameshwar Yadav (supra) is
      concerned, it is submitted by the learned ASG that the said decisions
      shall not be applicable to the facts of the case on hand looking to the
      graveness and seriousness of the offences involved. It is submitted that
B     in Bhaskar Industries Ltd. (supra), it was a case for the offence under
      Section 138 of the Negotiable Instruments Act and in Rameshwar Yadav
      (supra), it was a case for the offences under Section 498-A IPC and
      Section 4 of the Dowry Prohibition Act. It is submitted that, in the present
      case, the allegations against the appellant are for the offences punishable
C     under Sections 120-B read with Sections 420 and 409 IPC and Sections
      9, 12, 13(2) read with Sections 13(1)(c) and (d) of the Prevention of
      Corruption Act. Therefore, it is prayed to dismiss the present appeal.
             6. Heard learned Counsel appearing on behalf of the respective
      parties at length. At the outset, it is required to be noted that the appellant
      is required to appear before the learned Trial Court on every Friday and
D
      the appellant as such is appearing before the learned Trial Court on each
      and every Friday since 2013. Nothing is on record that at any point of
      time the appellant has tried to delay the trial. The appellant is represented
      through his counsel. The appellant is a permanent resident of Delhi. He
      is the Director on the Boards of several companies. The distance between
E     Delhi and Hyderabad is approximately 1500 kms. Therefore, the appellant
      sought for exemption from personal appearance before the learned Trial
      Court on each and every Friday and submitted the application under
      Section 205 Cr.P.C. and submitted that on all dates of adjournments, his
      counsel Sri Bharadwaj Reddy shall appear and no adjournment shall be
      asked for on his behalf. In the cases of Bhaskar Industries Ltd. (supra)
F     and Rameshwar Yadav (supra), this Court had the occasion to consider
      the scope and ambit of the application under Section 205 Cr.P.C. In the
      case of Bhaskar Industries Ltd. (supra), this Court has observed that
      if a Court is satisfied that in the interest of justice the personal attendance
      of an accused before it need not be insisted on, then the court has the
G     power to dispense with the attendance of the accused. It is further
      observed by this Court in the aforesaid decision that if a court feels that
      insisting on the personal attendance of an accused in a peculiar case
      would be too harsh on account of a variety of reasons, the court can
      grant relief to such an accused in the matter of facing the prosecution
      proceedings. It is observed and held by this Court in the aforesaid decision
H     that the normal rule is that the evidence shall be taken in the presence of
         PUNEET DALMIA v. CENTRAL BUREAU OF                                   141
       INVESTIGATION, HYDERABAD [M. R. SHAH, J.]

the accused. However, even in the absence of the accused, such evidence       A
can be taken but then his counsel must be present in the court, provided
he has been granted exemption from attending the court. In Paragraphs
14, 17, 18 and 19, this Court has observed and held as under:
          “14. The normal rule is that the evidence shall be taken in the
      presence of the accused. However, even in the absence of the            B
      accused such evidence can be taken but then his counsel must be
      present in the court, provided he has been granted exemption from
      attending the court. The concern of the criminal court should
      primarily be the administration of criminal justice. For that purpose
      the proceedings of the court in the case should register progress.
      Presence of the accused in the court is not for marking his             C
      attendance just for the sake of seeing him in the court. It is to
      enable the court to proceed with the trial. If the progress of the
      trial can be achieved even in the absence of the accused the
      court can certainly take into account the magnitude of the
      sufferings which a particular accused person may have to bear
                                                                              D
      with in order to make himself present in the court in that particular
      case.
          17. Thus, in appropriate cases the Magistrate can allow an
      accused to make even the first appearance through a counsel.
      The Magistrate is empowered to record the plea of the accused
      even when his counsel makes such plea on behalf of the accused          E
      in a case where the personal appearance of the accused is
      dispensed with. Section 317 of the Code has to be viewed in the
      above perspective as it empowers the court to dispense with the
      personal attendance of the accused (provided he is represented
      by a counsel in that case) even for proceeding with the further         F
      steps in the case. However, one precaution which the court should
      take in such a situation is that the said benefit need be granted
      only to an accused who gives an undertaking to the satisfaction of
      the court that he would not dispute his identity as the particular
      accused in the case, and that a counsel on his behalf would be
      present in court and that he has no objection in taking evidence in     G
      his absence. This precaution is necessary for the further progress
      of the proceedings including examination of the witnesses.
         18. A question could legitimately be asked — what might
      happen if the counsel engaged by the accused (whose personal
      appearance is dispensed with) does not appear or that the counsel       H
142             SUPREME COURT REPORTS                             [2019] 15 S.C.R.


A            does not cooperate in proceeding with the case? We may point
             out that the legislature has taken care of such eventualities. Section
             205(2) says that the Magistrate can in his discretion direct the
             personal attendance of the accused at any stage of the
             proceedings. The last limb of Section 317(1) confers a discretion
             on the Magistrate to direct the personal attendance of the accused
B            at any subsequent stage of the proceedings. He can even resort
             to other steps for enforcing such attendance.
                 19. The position, therefore, boils down to this: it is within the
             powers of a Magistrate and in his judicial discretion to dispense
             with the personal appearance of an accused either throughout or
C            at any particular stage of such proceedings in a summons case, if
             the Magistrate finds that insistence of his personal presence would
             itself inflict enormous suffering or tribulations on him, and the
             comparative advantage would be less. Such discretion need be
             exercised only in rare instances where due to the far distance at
             which the accused resides or carries on business or on account of
D
             any physical or other good reasons the Magistrate feels that
             dispensing with the personal attendance of the accused would
             only be in the interests of justice. However, the Magistrate who
             grants such benefit to the accused must take the precautions
             enumerated above, as a matter of course. We may reiterate that
E            when an accused makes an application to a Magistrate through
             his duly authorised counsel praying for affording the benefit of his
             personal presence being dispensed with the Magistrate can
             consider all aspects and pass appropriate orders thereon before
             proceeding further.”

F             It is true that in the aforesaid two cases before this Court, the
      offences alleged were less serious offences than alleged in the present
      case. However, the principles for grant of exemption as observed by
      this Court in the case of Bhaskar Industries Ltd. (supra) can be made
      applicable to the facts of the case on hand also and the appellant can be
      granted the exemption on certain conditions and on filing an undertaking
G     by the appellant, by which the interest of justice can be protected and
      grant of exemption may not ultimately affect the conclusion of the trial
      at the earliest. At this stage, it is required to be noted that nothing is on
      record that, at any point of time, any effort has been made by the appellant
      to stall/delay the trial. At this stage, it is required to be noted that in case
      of other two co-accused in cases arising of the same FIR, the applications
H
         PUNEET DALMIA v. CENTRAL BUREAU OF                                     143
       INVESTIGATION, HYDERABAD [M. R. SHAH, J.]

for exemption on the very same grounds have been allowed – one by               A
the High Court and another by the learned Trial Court.
       7. In view of the above and for the reasons stated above and
considering the facts and circumstances of the case, the present appeal
is allowed. The impugned Judgment and order passed by the High Court
as well as that of the learned Trial Court rejecting the application            B
submitted by the appellant under Section 205 Cr.P.C. are hereby quashed
and set aside and consequently the application submitted by the appellant
to dispense with his appearance before the learned Trial Court on all
dates of adjournments and permitting his counsel Sri Bharadwaj Reddy
to appear on his behalf is herby allowed on the following conditions:
                                                                                C
      (1) That the appellant shall give an undertaking to the learned
          Trial Court that he would not dispute his identity in the case
          and that Sri Bharadwaj Reddy-advocate who is permitted to
          represent the appellant, would appear before the learned Trial
          Court on his behalf on each and every date of hearing and
          that he shall not object recording of the evidence in his absence     D
          and that no adjournment shall be asked for on behalf of the
          appellant and/or his advocate Sri Bharadwaj Reddy;
      (2) That the appellant shall appear before the learned Trial Court
          for the purpose of framing of the charges and also on other
          hearing dates whenever the learned Trial Curt insists for his         E
          appearance;
      (3) If there is any failure on the part of the advocate Sri Bharadwaj
          Reddy, who is to represent the appellant, either to appear before
          the learned Trial Court on each adjournment and/or any
          adjournment is sought on behalf of the appellant and/or if the
                                                                                F
          learned Trial Court is of the opinion that the appellant and/or
          his advocate is trying to delay the trial, in that case, it would
          be open for the learned Trial Court to exercise its powers
          under Section 205 (2) Cr.P.C. and direct the appearance of
          the appellant on each and every date of adjournment.
      The present appeal is disposed of in the aforesaid terms.                 G


Divya Pandey                                              Appeal disposed of.


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