IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. No.7291/2017 AND CRL.P. No.7292/2017 BETWEEN BIJAY AGARWAL, S/O GANPATLAL AGARWAL, AGED ABOUT 55 YEARS, DIRECTOR, M/S GEE PEE INFOTECH PVT LTD, REGD. OFFICE AT NO 34/1Q, BALLYGUNGE CIRCULAR ROAD, KOLKATA -700 019 ... PETITIONER (Common in both petitions) (BY SRI. BASAVARAJ R. BANNUR, ADV.) AND M/S MEDILINES, PROPRIETORSHIP CONCERN, HAVING ITS PRINCIPAL PLACE OF BUSINBESS AT NO 42, 1ST MAIN ROAD, MARKENDESHWARA NAGAR, BINNYPET, BENGALURU – 560 053 REP BY ITS PROPRIETOR, DINESH KUMAR JAIN S/O KAJODINAL POWAR, PROPRIETOR OF M/S MEDILINES AT NO 42, 1ST MAIN ROAD, MARKENDESHWARA NAGAR, BINNYPET, BENGALURU – 560 053 ... RESPONDENT (Common in both petitions) (NOTICE TO RESPONDENT IS DISPENSED WITH) THESE CRIMINAL PETITIONS ARE FILED U/S 482 CR.P.C PRAYING TO QUASH THE COMMON ORDER DATED 03.08.2017 PASSED BY THE XXV ADDL A.C.M.M., BENGALURU ON THE APPLICATION FILED BY THE PETITIONER U/S 317 R/W SEC. 205 OF THE CR.P.C. IN THE PROCEEDINGS OF C.C.Nos.13937/2013 and 13938/2013 RESPECTIVELY AND ALLOW THE APPLICATION FILED BY THE PETITIONER U/S 317 R/W SEC. 205 OF CR.P.C. FOR SEEKING THE PERMANENT EXEMPTION.
THE ABOVE CRIMINAL PETITIONS COMING ON FOR ADMISSION A/W IA NOS.1/2017 AND 2/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER In these two petitions, notice to be issued to the Respondent-M/s. Medilines is dispensed with, as it is not a necessary party.
2. In the above two cases, Accused No.2 ( the petitioner herein) has made an application seeking for exemption from his appearance before the trial Court on all the dates of hearing and also stating that, as and when the court calls him, he would appear before the Court. However, after hearing the learned counsel for petitioner/Accused No.2, the learned XXV Additional Chief Metropolitan Magistrate has dismissed the said application vide order dated 03.08.2017. Aggrieved by the same, the petitioner is before this court.
3. On reading of the said order it is noticed that, if such an exemption is given to the accused, he may abscond from his appearance and he may not assist the court in early disposal of the case. It is also stated that, the application does not disclose about the earlier application, which was filed by the accused under Section 205 of Cr.P.C. and that, the said application was dismissed on 01.12.2016 and that order was not challenged. On the said grounds, the trial Court has dismissed the application of the accused. On the other hand, the order does not disclose as to what are the grounds urged by the petitioner and whether those grounds are genuine in nature or not.
4. It is the basic principle that, invariably in all the cases such exemption cannot be granted by the courts. However, the provision itself says that, under the peculiar facts and circumstances of the case on an individuality, the court has to exercise its judicious discretion and if need arises, such exemption has to be granted, otherwise, the provision itself will be frustrated. In this background, on perusal of the application filed by the petitioner it is seen that, the petitioner has categorically stated that he is permanently residing at Kolkata in West Bengal and he is also having his own office in Kolkata, and in order to attend the court, he has to travel more than 3000 Kms., and he cannot frequently travel on each and every date of hearing to the Court. On the other hand, he has also undertaken that, even in his absence on certain occasions, he would authorize his counsel to proceed with the matter in accordance with law, and he also undertakes that he would appear before the court as and when required by the Court.
5. The above said aspects have not been gone into by the trial Court. There is no dispute that the petitioner is a resident of Kolkata and on all the dates of hearing he has to spend money and travel from Kokata to Bengaluru. It is also stated by him that, he has got business at Kokata and therefore, on every date of hearing he cannot appear before the trial Court. In view of the undertaking that he would request his counsel to proceed with the matter and if necessary, the court can call him on any date and he is available and ready to appear before the Court, exemption as sought should have been considered by the trial court.
6. In the above circumstances, if the court needs his presence on any particular date, the court can definitely summon the petitioner and ask him to appear before the court. Therefore, I am of the opinion that, on material dates of the trial like, at the time of framing of charge or recording plea or at the time of recording the statement of the accused and also on the date of the judgment, the trial Court can call the petitioner before the court. Even otherwise, if the court for any other reasons require the presence of the accused, it would also pass the said order asking him to appear before the court. Therefore, in the above circumstances, considering the facts and circumstances, of this particular case, I am of the opinion that the trial Court ought to have allowed the application filed under Section 205 of Cr.P.C.
7. In view of the above facts and circumstances, I pass the following:-
ORDER The petitions are allowed. Consequently, the order dated 03.08.2017 passed by the learned Magistrate in C.C. Nos.13937/2013 & 13938/2013 is hereby set aside. Consequently, the application filed by the petitioner under Section 205 of Cr.P.C., is hereby allowed. However, it is made clear that the petitioner shall appear before the court as and when required by the Court for above noted purpose or for any other purpose, if the court feels just and necessary under the circumstances of the case. However, the learned Advocate appearing for the petitioner also should not take adjournment on the ground of absence of the petitioner/accused and he should co- operate with the Court for expeditious disposal of the case.
In view of the disposal of this case, IA Nos. 1 & 2 of 2017 filed in these cases for stay and permanent exemption to the petitioner/accused respectively during the pendency of the petition, do not survive for consideration and the same are dismissed.
Sd/-
JUDGE KGR*