Court No. - 83
Case :- APPLICATION U/S 482 No. - 28339 of 2019 Applicant :- Prakash Bhardwaj Opposite Party :- State Of Up And 8 Others Counsel for Applicant :- Nirmal Kumar Chaturvedi,Ugrasen Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under section 482 Cr. P.C. has been filed for quashing the order dated 18.02.2019 passed by the Additional Chief Judicial Magistrate, Firozabad in Case Crime No. 230 of 2012, under Sections 457, 380 of I.P.C., Police Station Rasoolpur, District Firozabad, whereby discharge application moved on behalf opposite party nos. 2 to 9 has been held maintainable without their personal appearance.
Perusal of record shows that the applicant has lodged a Complaint Case No. 1469 of 2012 against the opposite party nos. 2 to 9 and they were summoned for trial. It appears that the opposite party no. 2 to 9 have filed Criminal Misc. Writ Petition No. 12705 of 2015 challenging the proceeding of Case No. 1469 of 2012, under section 457, 380 of I.P.C., P.S. Rasoolpur, District Firozabad and said writ petition was disposed of by another bench of this Court vide order dated 25.05.2015 and liberty was given to the opposite party nos. 2 to 9 to move application for discharge. The opposite party no. 2 to 9 have filed application for discharge without obtaining bail and court below vide impugned order dated 18.02.2019 has held that application for discharge was maintainable for hearing. He further submitted that as per procedure, the opposite party nos. 2 to 9 must have obtained bail and only then their application for discharge was maintainable and thus the impugned order is against the law.
Learned A.G.A. has opposed and argued that there is no illegality in the impugned order.
Grievance of the applicant in the instant petition is that as the opposite party nos. 2 to 9 have not obtained bail, thus, their application for discharge was not maintainable.
It is apparent from the perusal of Section 205 Cr. P.C. that the Magistrate, if he sees reasons to do so, may dispense with personal attendance of the accused and permit him to appear by pleader. It is discretion of the Court whether to insist for personal appearance of accused, or not. Section 205 Cr. P.C. confers a discretion on the Court to exempt an accused from personal appearance till such appearance is considered by the Court to be not necessary. Similarly Section 317 Cr. P.C. also provides that at any stage of an enquiry or trial, if the 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, the Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence. Further in this regard, learned trial Court has relied authority of Hon'ble Apex Court pronounce in case of Ajay Kumar Ghose Vs. State of Jharkhand and another (2009) 14 SCC 115.
Learned counsel for the applicant has referred judgement in the case of Ram Bahadur Dhobi and ors Vs. State of U.P. and ors. 2011 Law Suit (All) 964. This case law pertains about the legal position regarding discharge, while in the instant case, opposite party nos. 2 to 9 have not been discharged so far and by the impugned order merely it has been held that application of opposite party nos. 2 to 9 for discharge is maintainable. In the above stated case, the issue of exemption of accused and for bail was not considered by the court below, thus this case does not help the applicant.
In view of aforesaid facts and circumstances, it cannot be said that impugned order suffers from any such illegality or perversity so as to warrant any interference by this Court in exercise of power confers under Section 482 Cr. P.C.
The present application under section 482 Cr. P.C. is dismissed.
Order Date :- 22.8.2019 T.S.