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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:

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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.