IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1468 of 2005
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M.P. Singh & Ors. ... ... ... .... ...... Petitioners
Versus
State of Jharkhand .. ... ........ Opp. Party
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CORAM: HON'BLE MR. JUSTICE D.G.R. PATNAIK
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For the Petitioners: Mr. Chandrajit Mukherjee, Advocate
For the State: Mr. D.K. Prasad, A.P.P
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07/23.06.2010
Invoking the inherent jurisdiction of this Court under Section
482 of the Code of Criminal Procedure, the petitioners have filed
the present application for quashing the order dated 15.07.2005
whereby, the learned court below had rejected the petitioners’
prayer for their exemption from personal appearance in the case,
vide C-III Case No. 342 of 1982 under Section 205 of the Code of
Criminal Procedure.
2. Heard counsel for the petitioner and counsel for the State.
3. The case against the petitioners was registered on the basis
of complaint filed by the Provident Fund Inspector alleging that in
spite of several notices, the petitioners had failed to deposit the
Linked Insurance Contributions of their employees for the month of
November, 1980 to January, 1981. On the basis of the complaint,
cognizance for the offence under Section 14 of the Employees
Provident Fund Act and Miscellaneous Provisions Act, 1952, was
taken against the petitioners by the court below.
4. Assailing the impugned order, learned counsel for the
petitioners raises the following grounds:-
(i) No summon was ever served upon the petitioners
informing them of the institution of the case and of the
cognizance being taken for the offences against them.
(ii) The petitioners happen to be the Directors of M/s Aron
Chemicals (P) Ltd. living at Kolkata and they have no
knowledge whatsoever about the present case.
(iii) The offence is of technical nature and the petitioners
being old persons, living at Kolkata, will face acute
hardship and physical inconvenience, if they are
compelled to appear before the trial court on each and
every date.
(iv) The petitioners are respectable persons and they
have genuine grounds for availing the privilege of benefits
under Section 205 of the Code of Criminal Procedure. The
impugned order of the learned court below is bad in law and
has been passed only on the ground that the discretion
under Section 205 of the Code of Criminal Procedure cannot
be invoked after issuance of warrant of arrest.
5. Learned counsel for the petitioners explains that the
issuance of warrant of arrest against the petitioners, even without
receipt of any service report of summons issued against the
petitioners, is in itself illegal and contrary to the provisions of
procedure in law. Even otherwise, the provisions of Section 205 of
the Code of Criminal Procedure do not debar the trial court to
exercise its discretion in appropriate cases to exempt the accused
persons from personal appearance. To buttress his arguments,
learned counsel for the petitioners would refer to and rely upon the
judgments of the Patna High Court in the Case of Sumit Bose @
Sumit Ranjan Bose and Ors. Vs. State of Bihar and Anr.
reported in 2002 (2) East Cri. Case 507 (Pat) and another
judgment of the Patna High Court in the case of D.K. Jhaver &
Ors. Vs. State of Bihar & Ors. reported in 1996 (2) East. Cri.
Case 399 (Pat).
6. On the other hand, counsel for the State would argue that the
present application is totally misconceived and not maintainable.
Supporting the impugned order of the learned court below, learned
counsel for the State would argue that the discretion vested in the
trial court under the provisions of Section 205 of the Code of
Criminal Procedure could not be invoked after issuance of warrant
of arrest. Such discretion can be exercised only upon issuance of
summons and before issuance of warrant of arrest. In support of his
submissions, learned counsel would refer to and rely upon the
judgment of the Kolkata High Court in the case of Ajit Kumar
Chakraborty and ors. Vs. Serampore Municipality reported in
1989 Cr.L.J. 523.
7. I have heard counsel for the parties and also gone through
the documents available on record, including the copies of the
ordersheet of the records of the trial court.
8. From perusal of the ordersheet, it appears that though, after
taking cognizance of the offence against the petitioners, the learned
court below had ordered for issuance of summons, but no service
report of summons was ever received and even before obtaining
the service report, the trial court has proceeded to issue warrants of
arrest against the petitioners.
The trial court appears to have rejected the prayer of the
petitioners for exemption under Section 205 of the Code of Criminal
Procedure only on the ground that the discretion vested under the
provisions of Section 205 of the Code of Criminal Procedure cannot
be invoked after issuance of warrant of arrest.
9. This view appears to be misconceived. The provisions of
Section 205 of the Code of Criminal Procedure do suggest that
whenever a Magistrate issues summons, he may have sufficient
reasons so to do to dispense with the personal attendance of the
accused and to permit him to appear through his pleader, but the
provisions do not impose any legal bar in exercise of the powers
under Section 205 of the Code of Criminal Procedure, when initially
summons were issued to the accused person, but was not taken
into custody under the process of the execution of warrant. This
view has been taken after elaborate discussion of the provisions of
Section 205 of the Code of Criminal Procedure and reference to
several judgments, including the judgments of the Supreme Court
and earlier judgments of the Patna High Court and that of other
High Courts, by the learned single Judge in the case of Sumit
Bose @ Sumit Ranjan Bose (supra).
As it appears, the issuance of warrant of arrest against the
petitioners, even without obtaining service report of summons,
earlier issued against them, is itself contrary to the provisions of the
procedure in law, as rightly pointed out by the counsel for the
petitioners.
10. On careful consideration of the entire facts and
circumstances of the case, it appears that the petitioners, who are
the residents of Kolkata living at a far away distance from the trial
court, situated at Ranchi, are facing the criminal prosecution, not on
account of personal acts, but on account of their association with a
corporate body. The circumstances do make out genuine grounds
for exemption of the petitioners from personal attendance under the
provisions of Section 205 of the Code of Criminal Procedure.
11. For the aforesaid reasons, this application is allowed. The
impugned order of the court below is hereby set aside. The matter
is remitted back to the trial court to reconsider the petitioners’
prayer for exemption under the provisions of Section 205 of the
Code of Criminal Procedure and to pass an appropriate order. In
the event the court exercises its discretion in favour of the
petitioners, it will still be at liberty to direct the petitioners to give an
undertaking to the satisfaction of the court below that they would
not dispute their identity at the time when the witnesses are
examined by the prosecution in their absence and that they will
appear before the court below as and when directed by the trial
court.
(D.G.R. Patnaik, J)
Manish/