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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1901 OF 2019 [Arising out of SLP (Crl.) No. 8136 of 2018]

Puneet Dalmia .. Appellant

Versus

Central Bureau of Investigation, Hyderabad .. Respondent

J U D G M E N T

M. R. Shah, J.

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 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 charge­sheet

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bearing C.C.  No.  12 of  2013,  one of the original  accused  in  the

aforesaid case has preferred the present appeal.    

3. That the appellant is accused No. 3 in the case pertaining to

the charge­sheet 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 120­B

read with Sections 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 appellant­original 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

appellant that he is the Director on the boards of several companies

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and is pre­occupied with the management and attending day­to­day

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 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.   

3.2 The said application was opposed by the respondent­CBI.    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 very serious charges/offences.   The learned

Principal  Special  Judge  for  CBI Cases,  Hyderabad dismissed the

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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 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 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

appearing on  behalf of the appellant that since  2013, on every

Friday, the appellant is attending the learned Trial Court and the

charge­sheet  is already filed. It is submitted that the trial is not

likely to be concluded at the earliest as 13 charge­sheets are filed in

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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 non­appearance 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 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

behalf of the  appellant that in fact the learned  Trial  Court  has

already granted permanent exemption from personal appearance to

two of the 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.   

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4.3 The learned counsel appearing on behalf of the appellant has

also relied upon the decisions of this Court in Bhaskar Industries

Ltd. 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

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 respondent­CBI.

5.1 It is vehemently submitted by  Shri Banerjee, learned ASG

appearing on behalf of the respondent­CBI 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

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inconvenience being caused to the 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 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 appellant­accused 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 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.

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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 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  498­A 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

under  Sections 120­B 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

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every  Friday  and 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 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)  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 power to dispense with the attendance of the accused.

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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 that the normal

rule is that the evidence shall  be taken in the  presence  of the

accused.   However, even in the absence of the 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.   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 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 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

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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  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 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 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  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 does not cooperate in proceeding with the case? We may

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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 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 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 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 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.”

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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 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 co­accused 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 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

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the High Court as well as that of the learned 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 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:

(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 Reddy­advocate 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

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

appearance;

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(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  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.   

………………………..J. (ASHOK BHUSHAN)

…………………………..J. (M. R. SHAH)

New Delhi, December 16, 2019.