SRI RAMESHWAR YADAV & ORS.versusTHE STATE OF BIHAR & ANR.

                        [2018] 4 S.C.R. 1055                            1055


               SRI RAMESHWAR YADAV & ORS.                               A
                                 v.
                 THE STATE OF BIHAR & ANR.
                 (Criminal Appeal No. 387 of 2018)
                         MARCH 16, 2018                                 B
         [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Code of Criminal Procedure, 1973 – ss. 205 and 482 –
Second respondent filed complaint against her husband and the
accused-appellants (parents-in-law and two others) u/s. 498A IPC
                                                                        C
and s.4 of the Dowry Prohibition Act – Magistrate summoned the
accused-appellants as well as the husband of the complainant-
second respondent – Accused-appellants filed application to
dispense with their physical appearance in the case – Application
rejected by the Magistrate u/s. 205 – Order of the Magistrate
challenged u/s.482 before the High Court, which was dismissed –         D
On appeal, held: The observation of the High Court that the
accused-appellants have filed application u/s. 205 at a subsequent
stage after appearing before the Court is factually incorrect –
Application u/s. 205 was filed by the accused-appellants prior to
the appearance in the Court – The grant of exemption from personal
                                                                        E
appearance in the Court on each and every date was required to be
considered in view of the fact that application was filed much before
their appearance in the Court – Further, Magistrate had not rejected
the application on the ground that application is not entertainable
after appearance of the accused-appellants before the Court – The
views of the High Court for rejecting the application were unfounded    F
– On the other hand Magistrate also, while rejecting the application,
failed to consider the actual grounds given by the accused-
appellants for seeking exemption – In application the grounds were
that appellant no.1, father of complainant’s husband, appellant no.2
(wife of appellant no. 1), appellant no.3 and 4 were residing at
                                                                        G
Pune – The distance between residence of the accused-appellants
and the place of trial at Patna is 1750 kms – Taking into
consideration the entire facts and circumstances and the grounds
taken by the appellants in their application u/s. 205 and s.482,
sufficient grounds were made out for granting exemption from
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                                1055
1056            SUPREME COURT REPORTS                      [2018] 4 S.C.R.


 A     personal appearance of the accused-appellants in the trial – Penal
       Code, 1860 – s. 498-A – Dowry Prohibition Act, 1961 – s.4.
             Allowing the appeal, the Court
             HELD: 1. The observation of the High Court that the
       accused has filed application under Section 205 Cr.P.C. at a
 B     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
       205Cr.P.C. was filed prior to the appearance in the court and the
       same would have very well been considered by the Magistrate
 C     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
 D     entertainable after appearance of the accused before the court.
       Thus, the aforesaid ground given by the High Court for rejecting
       the application is unfounded. [Para 10] [1060-H; 1061-A-C]
             2. There is one more reason due to which the High Court’s
       order cannot be sustained. The High Court in its order observed
 E     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. empowers the
 F     Magistrate, at any stage of inquiry or trial for reasons to be
       recorded to exempt attendance of the accused. There is no
       impediment in the power of the Magistrate to consider the
       application of accused for their exemption from personal
       appearance. [Paras 10, 11] [1061-C-E]

 G           3. Now, adverting to the reasons given by the Magistrate
       for rejecting the application. 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
 H     and hence the said reason given by the Magistrate is wholly out
SRI RAMESHWAR YADAV & ORS. v. THE STATE OF BIHAR & 1057
                     ANR.

of place. The second reason is that accused and complainant             A
should be present before the court on each and every date
expecting good sense prevail between them. This is not a 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
                                                                        B
desirable. With regard to this ground it is sufficient to notice that
application under Section 482 Cr.P.C. was not filed by the husband
of complainant whose pre-arrest bail was already rejected. The
appellants, thus, were not pressing application under Section
482 Cr.P.C. for husband of complainant who could have very well
participated in the proceedings. Thus, the above ground was also        C
not available for rejection of the application. [Paras 12, 13] [1061-
F-H; 1062-A-B]
      4. In the application the grounds which were given by the
appellants was that, appellant No.1 husband of complainant is
retired Army personnel and residing in Pune with his wife that is       D
appellant No.2. Appellant Nos.3 and 4 were also residing at Pune.
Husband of complainant 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      E
that appellant No.3 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.     F
filed before the High Court, 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             G
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. [Para 13] [1062-B-E]
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1058            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


 A           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
       No. 387 of 2018.
             From the Judgment and Order dated 17.04.2017 of the High Court
       of Judicature at Patna in Criminal Misc. No. 42524 of 2013.
             Rakesh Kumar, Adv. for the Appellants.
 B
             Ms. Abha R. Sharma, Abdullah, Advs. for the Respondents.
             The Judgment of the Court was delivered by
              ASHOK BHUSHAN, J. 1. This appeal has been filed against
       the judgment dated 17.04.2017 of the Patna High Court by which
 C     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:
 D
       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 IPC and Section
       4 of the Dowry Prohibition Act summoned the accused as well as Arnesh
 E     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
 F
       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
 G     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.
 H
SRI RAMESHWAR YADAV & ORS. v. THE STATE OF BIHAR & 1059
            ANR. [ASHOK BHUSHAN, J.]

      3. While rejecting the application on 13.08.2013, the Magistrate        A
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         B
       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           C
       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      D
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         E
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      F
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         G
       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.                        H
1060             SUPREME COURT REPORTS                           [2018] 4 S.C.R.


 A             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
 B
               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.
 C             (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.”
 D            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.
 E            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
 F     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
 G     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
 H
SRI RAMESHWAR YADAV & ORS. v. THE STATE OF BIHAR & 1061
            ANR. [ASHOK BHUSHAN, J.]

filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the            A
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
                                                                                   B
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               C
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.             D
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          E
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            F
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               G
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               H
1062                SUPREME COURT REPORTS                       [2018] 4 S.C.R.


 A     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
 B
       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
 C     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
 D
       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
 E     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
 F     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.
 G

       Ankit Gyan                                                   Appeal allowed.




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