Dismissed

Pavithra v. State of Karnataka

Karnataka HC4 Aug 2022CRL.P/4317/2020

Case brief

AI extract

What is this about?

Petitioner challenged an order granting accused respondent D.S. Brindamma exemption from personal appearance under Section 205 CrPC, citing health issues and alleging perjury. The High Court dismissed the plea, upholding the trial court's discretion to permit appearance by counsel under Section 205 as per Supreme Court precedents.

What did the court decide?

Petition dismissed; order of exemption under Section 205 CrPC stands; exemption may be recalled if accused defaults.

Pavithra Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2022)

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CRL.P No. 4317 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 4317 OF 2020

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BETWEEN:

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SMT.PAVITHRA, AGED 56 YEARS, W/O LATE S.SRINATH, R/AT FLAT NO.102, SRISHAILA NILAYA, I FLOOR, 8^TH CROSS, DOMMALURU, BENGALURU – 560 071.

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…PETITIONER

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(BY SRI.H.G.DAWOOD KHAN, ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA, BY BANNERGHATTA POLICE STATION, BY ITS POLICE INSPECTOR BANNERGHATTA, ANEKAL TALUK, BENGALURU – 560 083. REPTD. BY SPP.

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SMT. D.S.BRINDAMMA, W/O SRI KRISHNA REDDY, AGED 62 YEARS, RESIDING AT NO.20,

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CRL.P No. 4317 of 2020

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EAST END, ‘D’ MAIN ROAD, 9^TH BLOCK, JAYANAGAR, BANGALORE – 560 069.

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…RESPONDENTS

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(BY SRI.K.S.ABHIJITH, HCGP FOR R1; SRI.S.F.GOUTHAM CHAND, ADVOCATE FOR R2)

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THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 14.01.2020 IN C.C.NO.710/2019 ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND J.M.F.C., ANEKAL, BENGALURU URBAN DISTRICT, BENGALURU IN ALLOWING THE APPLICATION OF 2ND RESPONDENT FILED U/S 205 OF CR.P.C. AND SAID APPLICATION MAY BE ORDERED TO DISMISSED.

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THIS CRL.P. COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question

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an order dated 14.01.2020 passed in C.C.No.710/2019 by I Additional Civil Judge and JMFC, Anekal, Bengaluru Rural

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District, Bengaluru allowing an application filed by respondent No.2 under Section 205 of the Cr.P.C. granting exemption to respondent No.2 from personal appearance in C.C.No.710/2019.

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CRL.P No. 4317 of 2020

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Heard the learned counsel, Sri. H.G. Dawood

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Khan, appearing for the petitioner, Sri. K.S. Abhijith, learned HCGP appearing for respondent No.1 and Sri. S.F. Goutham Chand, appearing for respondent No.2.

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Brief facts that leads the petitioner before this

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Court in the subject petition, as borne out from the pleadings, are as follows:

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The petitioner is the complainant. Respondent No.2 is one of the accused. A crime comes to be registered by the petitioner against respondent No.2 and two others in Crime No.260/2015 for offences punishable under Sections 404, 418, 424, 406 and 420 of the IPC. On registration of the crime, respondent No.2 along with two other accused has knocked the doors of this Court in Crl.P.No.852/2016.

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This Court, by its order dated 23.01.2019, allowed the petition in part and obliterated the proceedings against petitioner Nos.2 and 3 therein, accused Nos.2 and 3 in the crime and sustained the registration of the crime against

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CRL.P No. 4317 of 2020

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respondent No.2 herein, who was accused No.1 and the petitioner No.1 in the said case.

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Respondent No.2 herein tossed the said order

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before the Apex Court in SLP No.5292/2019, which came to be disposed on 12.07.2019, by the following order:

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"Learned counsel for the petitioner argues that it is a civil dispute between the parties and all the parties are family members.

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Be that as it may, we find no ground to interfere with the criminal proceedings at this stage.

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Accordingly, the Special Leave Petition is dismissed.

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Pending application stands disposed of.

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However, it is open for the petitioner to argue for his charge before the jurisdictional court on merits."

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Pursuant to the said order, the proceedings continued against respondent No.2, who became the sole accused in the case.

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Respondent No.2 files an application under

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Section 205 of the Cr.P.C. seeking her exemption from

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CRL.P No. 4317 of 2020

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personal appearance in the proceedings in C.C.No.710/2019. The application was considered by the concerned Court, the concerned Court allowed the application and permitted exemption of the petitioner from personal appearance in C.C.No.710/2019. The application being allowed, is what drives the complainant to this Court in the subject petition.

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Learned counsel appearing for the petitioner

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would contend with vehemence that the petitioner has stated falsehood in the application with regard to her health problems and has sought exemption. The Court without considering or giving an opportunity of hearing to

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the complainant could not have exempted respondent No.2 from personal appearance before the proceedings in the aforesaid case and seeks quashment of the order and an opportunity to be granted to him to make his submissions, on the application, before the concerned court.

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CRL.P No. 4317 of 2020

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On the other hand, the learned counsel appearing for respondent No.2 would refute the submissions to contend that the matter is a civil dispute arising between the parties and a partition suit to that effect is pending adjudication before the competent Civil Court. Orders to be passed under Section 205 of the Cr.P.C. is between the Court and the concerned accused to exempt or otherwise and the complainant has no say in the matter. He would place reliance upon the judgment of the Apex Court in the case of PUNEET DALMIA V. CBI¹ .

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I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.

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The issue is not with regard to the merit of the matter between the petitioner or respondent No.2, who is now the sole accused in the crime so registered by the petitioner-complainant, which is now pending

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1 (2020) 12 SCC 695

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CRL.P No. 4317 of 2020

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consideration in C.C.No.709/2019. An application under Section 205 of the Cr.P.C. is filed by respondent No.2 seeking exemption from personal appearance. Section 205

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of the Cr.P.C. read as follows:

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" 205. Magistrate may dispense with

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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.

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(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."

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In a given case, in terms of Section 205 of the Cr.P.C. the learned Magistrate is empowered to grant

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exemption from personal attendance of the accused and permit him to appear by his pleader.

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An application is filed in terms of the

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afore-quoted provisions i.e., Section 205 of the Cr.P.C. The same is considered by the learned Magistrate and an

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CRL.P No. 4317 of 2020

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order is passed allowing the application permitting exemption from personal attendance during the proceedings. The said order reads as follows:

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"Case advanced.

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Accused no.1 present. Counsel Sri. CR filed 70(2) application along with documents in consideration of the earlier filed application U/sec.205 of Cr.PC.

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Perused the medical documents.

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Satisfied with the reasons stated. Hence, NBW is recalled, issue intimation to the SHO.

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By looking into the physical condition of the I accused, the court noticed that she is unable to sit and stand.

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Also she has own supportive instrument for her slip disc problem.

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Learned counsel submitted that the application filed u/sec. 205 of Cr.PC may be considered and the accused may be permanently exempted from appearing before the court.

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Learned counsel submitted that she will appear to answer the charge.

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Learned counsel also stated that she will not dispute the identity of the witnesses.

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Learned counsel also undertook that she will appear to answer 313 statement and to hear the

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judgment and also will appear as and when called by the court.

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By looking into the documents and the physical condition of the accused the application filed by the accused U/sec.205 of Cr.PC is hereby allowed.

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The accused shall appear before the court without fail as and when directed.

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Call on hearing date."

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The reasons rendered by the concerned Court in granting exemption to the petitioner is in tune with that the Apex Court holds in the case of PUNEET DALMIA

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(supra) . The Apex Court considering the purport of Section 205 of the Cr.P.C., has held as follows:

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5. Heard the learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the appellant is required to appear before the learned trial court on every Friday and the appellant as such is appearing before the learned trial court on each and every Friday since 2013. Nothing is on record that at any point of time the appellant has tried to delay the trial. The appellant is represented through his counsel. The appellant is a permanent resident of Delhi. He is the Director on the Boards of several companies. The distance between Delhi and

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CRL.P No. 4317 of 2020

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Hyderabad is approximately 1500 km. Therefore, the appellant sought for exemption from personal appearance before the learned trial court on each and every Friday and submitted the application under Section 205 CrPC and submitted that on all dates of adjournments, his counsel Shri Bharadwaj Reddy shall appear and no adjournment shall be asked for on his behalf. In Bhaskar Industries Ltd. [Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] and Rameshwar Yadav [Rameshwar Yadav v. State of Bihar, (2018) 4 SCC 608 : (2018) 2 SCC (Cri) 585] , this Court had the occasion to consider the scope and ambit of the application under Section 205 CrPC. In Bhaskar Industries Ltd. [Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] , this Court has observed that if a court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of the accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an accused in the matter of facing the prosecution proceedings. It is observed and held by this Court in

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CRL.P No. 4317 of 2020

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the aforesaid decision that 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.

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6. In paras 14, 17, 18 and 19, this Court has observed [Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] and held as under : (Bhaskar Industries Ltd. case [Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] , SCC pp. 407-08)

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“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

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CRL.P No. 4317 of 2020

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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.

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***

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17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity

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CRL.P No. 4317 of 2020

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as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.

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18. A question could legitimately be asked — what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

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19. The position, therefore, boils down to this : 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

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CRL.P No. 4317 of 2020

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Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on 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. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.”

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(emphasis supplied)

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7. It is true that in the aforesaid two cases before this Court, the offences alleged were less serious offences than alleged in the present case. However, the principles for grant of exemption as observed by this Court in Bhaskar Industries Ltd. [Bhaskar Industries Ltd. v. Bhiwani Denim &

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CRL.P No. 4317 of 2020

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Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] can be made applicable to the facts of the case on hand also and the appellant can be granted the exemption on certain conditions and on filing an undertaking by the appellant, by which the interest of justice can be protected and grant of exemption may not ultimately affect the conclusion of the trial at the earliest. At this stage, it is required to be noted that nothing is on record that, at any point of time, any effort has been made by the appellant to stall/delay the trial. At this stage, it is required to be noted that in case of other two co-accused in cases arising of the same FIR, the applications for exemption on the very same grounds have been allowed, one by the High Court and another by the learned trial court."

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In the light of the order passed permitting exemption from personal attendance to respondent No.2 under Section 205 of the Cr.P.C. and the same being in tune with the judgment of the Apex Court so rendered in the case of PUNEET DALMIA (supra) , I do not find any warrant to interfere with the order passed by the learned Magistrate granting exemption. However, it would be open

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to the learned Magistrate, in the event, the learned

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counsel for respondent No.2 does not appear or does not co-operate with the trial in any manner, to recall the said order under Section 205(2) of the Cr.P.C. and pass appropriate orders seeking personal attendance of respondent No.2.

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Finding no warrant to interfere with the order passed, I decline to entertain the petition, the petition stands dismissed.

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Sd/JUDGE

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SJK

Pavithra v. State of Karnataka

Case brief

What is this about?

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Pavithra v. State of Karnataka

Case brief

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