IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.6920/2018 C/W CRIMINAL PETITION No.6927/2018 IN CRIMINAL PETITION No.6920/2018:
BETWEEN:
SRI. PARAMAHAMSA NITHYANANDA SWAMY @ RAJASHEKARAN AGED ABOUT 40 YEARS S/O ANNAMALAI ARUNACHALAM R/A NITHYANANDA DHYANAPEETA KALLUGOPANAHALLI BIDADI HOBLI, RAMANAGARA TALUK RAMANAGARA DISTRICT-560 078 ... PETITIONER (BY SHRI. C.V. NAGESH, SENIOR ADVOCATE FOR SHRI. K. RAGHAVENDRA, ADVOCATE) AND:
STATE OF KARNATAKA BY STATION HOUSE OFFICER BIDADI POLICE STATION RAMANAGARA DISTRICT RAMANAGARA REPRESENTED BY SPP HIGH COURT OF KARNATAKA BANGALORE-560 001 ... RESPONDENT (BY SHRI. SANDESH J. CHOUTA, AAG) THIS CRIMINAL PETITON IS FILED U/S 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.09.2018, PASSED IN THE CASE OF THE APPLICATION FILED UNDER SECTION 317 OF THE CODE OF CRIMINAL PROCEDURE AND FURTHER BE PLEASED TO ORDER THE EXEMPTION OF THE PETITIOENR FROM PERSONAL APPEARANCE IN THE CASE TILL SUCH TIME HIS PRESENCE BECOMES ABSOLUTELY NECESSARY.
IN CRIMINAL PETITION No.6927/2018:
BETWEEN:
SRI. SIVA VALLABHANENI WRONGLY MENTIONED AS SHIVA VALLABHANENI @ SRI NITHYA SACHITANANDA IN THE CHARGE SHEET S/O SATHYANARAYANA MURTHY AGED 54 YEARS WRONGLY STATED AS R/O NITHYANANDA DHYANAPEETA KALLUGOPANAHALLI, BIDADI HOBLI RAMANAGARA TALUK & DISTRICT-562 109 RESIDING AT ESTEEM HERITAGE PEARL 203 3/7, ROSE GARDEN ROAD J.P.NAGAR, 5TH PHASE BENGALURU-560 078 ... PETITIONER (BY SHRI. RAVI B. NAIK, SENIOR ADVOCATE FOR SMT. VIJETHA R. NAIK, ADVOCATE) AND:
1. THE STATE OF KARNATAKA THROUGH BIDADI POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001 2. SRI. K. LENIN @ NITYA DHARMANANDA S/O KARUPPAN, AGED ABOUT 35 YEARS R/OF VEPPAMPUNDI VILLAGE SALEM DISTRICT-600 025 PRESENTLY RESIDING AT C/O KUMAR AINTIRAM DEVELOPERS PVT LTD.
BG-3, GOKUL APARTMENT, NEW NO.250 R.K.MUTT ROAD, R.A. PURAM CHENNAI-600 025 ... RESPONDENTS (BY SHRI. SANDESH J. CHOUTA, AAG FOR R1) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 06.09.2018, PASSED BY LEARNED III ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAMANAGARA IN S.C.NO.86/14.
THESE CRIMINAL PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDER ON 20.11.2018, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER These two petitions have been presented by accused No.1 and 3 in S.C.No.86/2014 on the file of III Addl. District & Sessions Judge, Ramanagara, challenging order dated 06.09.2018, rejecting their applications filed under Section 317 Cr.P.C, and issuing Non-Bailable Warrants against them.
2. Heard Shri C.V.Nagesh, learned Senior Advocate for accused No.1, Shri Ravi B.Naik, learned Senior Advocate for accused No.3 and Shri Sandesh J.Chouta, learned Additional Advocate General for the State.
3. Briefly stated the facts of the case are, accused No.1 filed an application under Section 317 of Cr.P.C. on 06.09.2018 with a prayer to exempt his personal appearance for the day inter alia on the ground that, he was observing ‘Chathurmasa’, a spiritual practice to be observed by all Sanyasis; that he was doing ‘Chathurmasa Parikrama’ on the bank of Narmada river, where he had to perform religious rituals in certain temples; that he had fallen ill at Varanasi and after he recovered from illness, he continued his ‘Parikrama’, and that he could not wind-up the ‘Parikrama’ as it is against spiritual/religious tenets.
4. Learned Sessions Judge rejected the said application by following order:
“ORDERS ON APLICATION FILED ON BEHALF OF A1 U/SEC.317 OF Cr.PC There is directions from Hon’ble Supreme Court in Spl.Leave Petition No.1176/2017 to dispose of the matter expeditiously.
Accused No.1 remained absent form 14.06.2018.
On 16.08.2018, it is submitted on behalf of A1 that, accused No.1 being pontiff is observing Chathurmasa Parikrama and he will personally present before the court in the 1st week of September. Even the counsel for the accused No.1 has undertaken to keep A1 present before the court. However, once again today also EP is filed on behalf of A1.
Since there is directions from Hon’ble Supreme Court of India, it is for the accused to co-operate with the court for the disposal of the matter expeditiously. The undertaking given to this court on 16.08.2018 has not been complied.
On the last date of hearing Sri.ERGN for A1 has prayed time to argue on the applications filed under sec.301(2) of Cr.PC by CW1 and CW3. On that day, as requested, time granted as a final chance keeping in mind the directions of Hon’ble Supreme Court of India. Today, he sought time to argue. Thus, it is prima-facie clear that, accused No.1 is not co-operating with the court to comply the directions of Hon’ble Supreme Court of India. Hence, on this score also, it is not a fit case to exempt the appearance of A1. Therefore, the application filed on behalf of A1 deserves to be rejected.
Hence, the following:
ORDER The application filed on behalf of A1 U/sec.317 of Cr.PC is hereby rejected.
Issue NBW to A1 and notice to his surety through SP, CID, Bengaluru.
Sd/-
III Addl. Dist. & Sessions Judge, Ramanagara.”
5. Similarly, accused No.3 also filed an application under Section 317 of Cr.P.C, seeking exemption from personal appearance on the ground that his wife (accused No.5) was suffering from ‘corrosive lichen planus’ an auto- immune disease, which effects 0.5 to 1 percent of the population and if it were not treated would lead to Cancer; that Doctors in India and United States have opined that the disease is serious in nature; accused No.5 is not in a position to travel long distance and she required assistance of somebody, which was presently given by accused No.3.
6. The application filed by accused No.3 has also been rejected by following order:
“ORDERS ON APLICATION FILED ON BEHALF OF A3 TO A6 Today, A3 to A6 are also absent. On their behalf, applications U/sec.317 of Cr.PC is filed.
Perused. A4 and A6 are present on the last date of hearing. Hence, their application deserves to be allowed.
A3 and A5 are regularly not present before the court. It is made clear that, A5 is suffering from serious ill-health. Therefore, her application deserves to be allowed.
Though this court as per its order dated 08.08.2018 has directed A3 to be present before this court, he has not appeared on the subsequent dates and even today. Therefore, this court is not satisfied with the reasons given for the non-appearance of A3. Hence, his application deserves to be rejected.
Hence, the following:
ORDER Applications filed on behalf of A3 to A6 are hereby disposed of in the following terms.
A4 to A6 are exempted from appearing before the court for the day.
The prayer for A3 for his exemption is hereby rejected.
Issue NBW to A3 and notice to his surety through SP, CID, Bengaluru.
Sd/-
III Addl. Dist. & Sessions Judge Ramanagara.”
7. Assailing the impugned orders, Shri Nagesh and Shri Ravi B.Naik, learned Senior Advocates made following submissions:
that on 06.09.2018, the case was listed for addressing arguments on an application filed by CWs.1 and 3 under Section 301(2) of Cr.P.C. Therefore, presence of accused was not imperative;
that in the application filed by accused No.1, it was specifically pleaded that the accused would not dispute his identity in the event any witness was summoned and examined by the prosecution and such witness would refer the name of accused during the course of trial;
that in the applications filed by both accused No.1 and 3, it was stated that they would be represented by their respective advocates; and that despite aforesaid pleadings in the applications and petitioners’ advocates being present before the Court, the learned Sessions Judge has erroneously rejected the applications and issued Non-Bailable Warrants.
8. Shri. C.V. Nagesh, contended that law is fairly well- settled by the pronouncements of Supreme Court of India in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and others1 and Rameshwar Yadav and others v. State of Bihar and another2 and argued that Section 317 Cr.P.C, empowers a ‘Judge’ or a ‘Magistrate’ to dispense with the attendance of accused and proceed with the trial in his absence. He urged that an application under Section 317 Cr.P.C. is maintainable at any stage of 1 (2001) 7 SCC 401 2 (2018) 4 SCC 608 an ‘inquiry’ or ‘trial’ either before a ‘Judge’ or a ‘Magistrate’.
9. Opposing the petitions, Shri. Chouta made following submissions:
that the petitioners have been filing stereo typed applications before the Trial Court seeking exemption from appearance;
that Section 313 Cr.P.C, clothes the Trial Court with ample power to summon the accused at any time;
that there is no jurisdictional error in the order passed by the learned Magistrate in passing the impugned orders; and that the authority in the case of Bhaskar Industries Ltd. is not applicable to the facts of the case inasmuch as it was case under Section 138 of the Negotiable Instruments Act, 1881.
10. I have carefully considered the submissions of learned Senior Advocates for the petitioners and learned Additional Advocate General for the State and perused the records.
11. A careful perusal of impugned orders passed by the learned Sessions Judge indicates that on 06.09.2018, the case was listed for addressing arguments on the applications filed by CWs.1 & 3 under Section 301(2) of Cr.P.C.
12. The application filed on behalf of accused No.1 has been rejected holding that, he was not co-operating with the Court to comply with the directions of the Supreme Court of India. In the case of accused No.3, the learned Trial Judge has held that reasons given for non-appearance were not satisfactory.
13. In Bhaskar Industries Ltd. (supra), it is held as follows:-
“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 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.”
(emphasis supplied) 14. In Rameshwar Yadav (supra), it is held as follows:-
“12. The High Court in its order observed that there is another provision, that is, Section 317 CrPC 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 CrPC and not under Section 205 CrPC. Section 317 CrPC which empowers the Magistrate, at any 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 CrPC 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 the accused for their exemption from personal appearance.”
(emphasis supplied) 15. The ground urged on behalf of accused No.1 is that he had fallen ill whilst he was performing his ‘Chathurmasa’ ritual and after he recovered from his illness, he was completing the same on the bank of Narmada river. In the impugned order, the learned Trial Judge has neither adverted to the grounds urged in the application nor recorded cogent reasons for rejecting the application. For a Sanyasi, ‘Chathurmasa’ ritual is sacrosanct. The application contains a specific statement that accused No.1 would not dispute his identity, if referred to by any witness. The application also contains an averment that accused would be represented by his advocate. It is relevant to note that the learned Trial Judge has rejected the application as the accused was absent and the learned advocate sought time to address the arguments. Absence of accused for the reasons stated in the application and the learned advocate seeking adjournment to address arguments are two distinct aspects. The learned Sessions Judge ought to have recorded cogent reasons while rejecting the application. He has merely recorded that accused No.1 was not co-operating with the Court for disposal of the matter expeditiously. Thus, the impugned order does not disclose application of mind by the learned Trial Judge vis-à-vis the reasons stated in the application.
16. In the case of accused No.3, the ground urged seeking exemption is that his wife was seriously ill and requires his assistance. While rejecting the application of accused No.3, the learned Sessions Judge has not adverted to the reasons shown in the application nor recorded cogent reasons except stating that ‘the Court is not satisfied with the reasons given’.
17. It is settled that when an order is passed adjudicating an application, the same must reflect proper application of mind and contain cogent reasons for rejecting the application.
18. Thus, the impugned orders in both cases do not disclose reasons and therefore unsustainable.
19. It cannot be gainsaid that applications under Section 301(2) Cr.P.C, could not have been heard in the absence of accused No.1 & 3, particularly, in the light of a specific averment in the applications that accused being represented by their respective advocates.
20. In the circumstances, the impugned orders passed are unsustainable in law. Hence, the following:
ORDER (i) Crl.P.No.6920/2018 and Crl.P.No.6927/2018 are allowed;
(ii) Order dated 06.09.2018 in S.C.No.86/2014 passed by the III Addl. District & Sessions Judge, Ramanagara, challenged in Crl.P.No.6920/2018 insofar as rejecting the application of accused No.1 filed under Section 317 of Cr.P.C, and issuing Non-Bailable Warrant is set aside; and the application seeking exemption is allowed;
(iii) Order dated 06.09.2018 in S.C.No.86/2014 passed by the III Addl. District & Sessions Judge, Ramanagara, challenged in Crl.P.No.6927/2018 insofar as rejecting the application of accused No.3 filed under Section 317 of Cr.P.C, and issuing Non-Bailable Warrant is set aside; and the application seeking exemption is allowed;
(iv) This order shall not preclude the learned Sessions Judge from directing the presence of the accused on future dates.
In view of disposal of these petitions, all pending interlocutory applications stand disposed of.
No costs.
cp* Sd/- JUDGE