This is a transfer application under section 407 of the Code of Criminal Procedure (in short "the Code") for transfer of the Criminal Case No. 1224 of 2008, State v Mohd. Yusuf arising out of Crime No. 703 of 2007, P.S. Indrapuram, District Ghaziabad pending in the court of Judicial Magistrate/I-Additional Civil Judge, Junior Division, Ghaziabad to any other district.
Heard Mr. Manish Tiwary for the applicants and the learned AGA for the State and perused the record.
Mr. Manish Tiwary submitted that the applicants are the permanent residents of district Lucknow and they are required to appear in the court concerned at Ghaziabad. It was further submitted that respondent no. 2 is the husband of applicant no. 1 who has concocted the present case to build up a pressure on the applicants for compromising the criminal cases filed by applicant no. 1 in district Lucknow. Mr. Tiwary further submitted that it would be highly inconvenient for the applicants to go to Ghaziabad and contest the present case there, therefore, the present case may be transferred to Lucknow.
The main grievance of the applicants seem to be that they have to appear on each date before the court at Ghaziabad, which would be much inconvenient to them, therefore, it is contended on their behalf that personal appearance of the applicants may not be insisted upon by the learned trial court unless it is not possible to hold the trial in their absence. The further apprehend endangered to their personal security from respondent no. 2.
In my opinion, the aforesaid criminal case cannot be transferred only on the ground that the applicants live far off from Ghaziabad and they have to appear in person on each date before the court concerned. If the applicants have any difficulty in appearing personally before the court concerned, it is open to them to move appropriate application under section 205 of the Code for exemption from their personal attendances in the court.
Mr. Tiwary lastly submitted that some directions for considering the prayer of the applicants under section 205 of the code may be issued to the learned trial court instead of transferring the case and this will serve the purpose behind the presentation of this transfer application.
Section 205 of the Code empowers a Magistrate to dispense with personal attendance of the accused in certain circumstances. Section 205 of the Code reads as follows:
?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.?
In the case of Bhaskar Industries Ltd Vs. Bhiwani Denim and Apparels Ltd.[ (2001) 7 SCC 401, the Apex Court has propounded the principles regarding the ambit and scope of section 205 of the Code. Paragraph 19 of the judgement seems to be relevant, which is as follows:
?19.......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 to 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.?
The aforesaid principles have been followed with approval in the subsequent case of TGN Kumar v State of Kerala, (2011) 2 SCC 772. Paragraphs 8 & 10 of the judgement rendered in TGN Kumar (supra) case seem to be relevant, which are reproduced as follows:
?8. The Section confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See: S.V. Muzumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd. & Anr.7) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.
?.........
10.We respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial.?
Therefore, the Magistrate while considering an application under section 205 of the Code, has to see whether or not any useful purpose would be served by requiring the personal attendance of the accused in the court. He is further required to see whether or not the progress of the trial is likely to be hampered on account of absence of the accused. As held in the case of Bhaskar Industries (supra), the discretion under section 205 of the Code should be exercised in a judicious manner and the personal presence of the accused should be required only when the trial cannot proceed further without the presence of the accused. If the trial can be held conveniently in absence of the accused, it would be just and expedient to exercise the discretion in favour of the accused and dispense with his personal attendance in the court..
In view of the aforesaid, it will be open to the applicants to move an application under section 205 of the Code for dispensing with their personal attendance in the court. If any such application is moved, the same may be considered and disposed of in accordance with the observations made herein before.
However, I do not consider it proper to transfer the aforesaid case.
With the aforesaid observations, the transfer application is dismissed.
Order Date :- 16.3.2011 shailesh