IN THE HIGH COURT OF JUDICATURE AT PATNA
OR. CR. MISC No.5 of 2010
OFFICIAL LIQUIDATOR OF M/S JAISWAL ENGINEERING WORKS PVT.LTD
Versus
SRI OMKAR NATH CHOUDHARY & ORS
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8. 09.9.2010 The accused persons have filed an application under
Section 205 of the Code of Criminal Procedure praying for
dispensing with their personal attendance in the present
proceedings on day-to-day basis.
It is stated by learned counsel for the accused
persons that the accused persons are law abiding persons
and have always taken to legal recourse. The petitioners
had filed Company Appeal against the winding up order of
this Court and the Appeal was dismissed and thereafter
they moved the Supreme Court and after dismissal of the
S.L.P. by the Supreme Court the accused persons learnt
about the present criminal case instituted against them and
immediately thereafter they executed Vakalatnama and
handed over the same to their Advocate who was appearing
for them in the Company Petition on 19.8.2010.
It is further stated that petitioner Nos. 1 & 2 are old
persons aged about 73 and 65 years being the father and
mother respectively of accused Nos. 3 to 5 and they are
suffering from various ailments and thus not in a position to
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appear in Court on a regular basis. It is also submitted that
all the five petitioners reside at Jamshedpur in the State of
Jharkhand which is situated at a fairly long distance from
Patna and serious inconvenience would be caused to them
if they are to appear on a regular basis in the case. It is also
urged that the matter relates to non-filing of the statutory
statements and thus the proceedings can continue even in
presence of their counsel and they shall not in any way
delay the conclusion of the trial proceeding.
For the aforesaid reasons, it is prayed that the
accused persons’ appearance on every date may be
dispensed with and they undertake to appear on every date
in the matter through their counsel and would also appear
personally whenever this Court directs them to do so.
Learned counsel for the O.L. opposes the prayer
stating that the petitioners have taken several measures to
delay the matter in the Company Petition and thus they are
not entitled to the privilege of Section 205 Cr.P.C.
On a consideration of the entire facts and
circumstances, I find that the present criminal proceedings
have been instituted on 11.1.2010 under Section 454(5A) of
the Companies Act, 1956 and thereafter cognizance has
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been taken on 5.3.2010 on which date summons was
directed to be issued. After the service of summons this
Court finding that the accused persons had not appeared
directed issuance of warrant of arrest on 22.7.2010.
Immediately thereafter the accused persons have filed their
Vakalatnama through their Advocate which was noted by
this Court on the last occasion when the matter was taken
up.
In the above circumstances, it cannot be said at this
stage that the petitioners had acted in a manner so as to
delay the present proceedings. Considering the other
submissions of learned counsel for the petitioners also and
the circumstances of the case, this Court is of the view that
it is a fit case to exempt the petitioners from personal
attendance and permit them to appear through their
Advocate.
Accordingly, the petition is allowed and the
petitioners are exempted from personal attendance in Court.
They, however, shall be present through their counsel on
each date when the matter is to be taken up by this Court.
They shall also be personally present in Court whenever
directed by this Court by a specific order.
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The order issuing warrant of arrest against them on
22.7.2010 is recalled.
(Ramesh Kumar Datta,J.)
Spal/