Adu Ram v.

Mukna, (SC)

2005(1) ALL MR(Cri) 277 : 2005(2) R.C.R.(Criminal) 64 : 2005(1) Apex Criminal 621 :
2004(8) JT 545 : 2004 AIR (SC) 5064 : 2004 CriLJ 4674 : 2004(4) Crimes 175 : 2005(1)
Cri.CC 678 : 2005(1) AICLR 317 : 2005(10) SCC 597 : 2004(8) Scale 591 : 2004 SCR 314 :
2005 SCC(Cri) 1635 : 2004 AIR (SCW) 5773 : 2004(7) Supreme 292 : 2004(2) W.L.C. (SC)
Criminal 792 : 2005 CriLR (SC) 122 : 2004(23) AIC 68

SUPREME COURT OF INDIA

Before :- Arijit Pasayat and C.K. Thakker, JJ.

Criminal Appeal No. 646 of 1999. D/d. 8.10.2004

Adu Ram - Appellants

Versus
Mukna - Respondents
[With Crl. Appeal No. 647/1999]

For the Appellant in Crl.A. No. 646/99 :- B.D. Sharma, Advocate.

For the Appellant in Crl.A. No. 647/99 :- Ms. Madhurima Tatia and Aruneshwar Gupta,
Advocates.

For the Respondent in Crl.A. No. 646/99 :- Ms. Madhurima Tatia and Aruneshwar Gupta,
Advocates.

For the Respondent :- Sushil Kumar Jain, Ms. Pratibha Jain, H.D. Thanvi, Sarad Singhania,
Ram Niwas and Alok Bachawat, Advocates.

A. Indian Penal Code, Section 304 Parts I and II - Parties exchanged hot words
over a trifle dispute - Accused surrounded the deceased and gave beatings with
lathies and axes - Accused caused 34 injuries but all on non- vital parts - Injuries
on head simple in nature - Accused guilty of offence under Section 304 Part-I -
Conviction under Section 302 Indian Penal Code set aside - The case could fall
under Section 304 Part-II.

[Paras 6 to 10]

B. Indian Penal Code, Section 376 - Criminal Procedure Code, Section 235 -
Quantum of punishment - Offences against women, dacoity, kidnapping,
misappropriation of public money and offences involving moral turpitude which
have great impact on social order require exemplary treatment.

[Para 16]

C. Criminal Procedure Code, Section 235 - Quantum of punishment - Law as

enunciated by Supreme Court summed up:-

(1) Law should adopt the corrective machinery or the deterrence

based on factual matrix - By deft modulation sentencing process be
stern where it should be, and tempered with mercy where it warrants
to be.
(2) Facts and given circumstances in each case, the nature of the
crime, the manner in which it was planned and committed, the motive
for commission of the crime, the conduct of the accused, the nature of
weapons used and all other attending circumstances are relevant
facts which would enter into the area of consideration.
(3) A murder committed due to deep-seated mutual and personal
rivalry may not call for penalty of death - But an organised crime or
mass murders of innocent people would call for imposition of death
sentence as deterrence.
(4) Undue sympathy to impose inadequate sentence would do more
harm to the justice system to undermine the public confidence in the
efficacy of law and society could not long endure under such serious
threats. 1991(2) RCR(Crl.) 427 (SC) relied.
 (5) In practice sentences are determined largely by other
considerations - Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence - Sometimes the
desirability of keeping him out of circulation, and sometimes even the
tragic results of his crime - Inevitably these considerations cause a
departure from just desert as the basis of punishment and create
cases of apparent injustice.
(6) Practice of punishing all serious crimes with equal severity is now
unknown in civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in
recent times.
(7) The aggravating and mitigating factors and circumstances in
which a crime has been committed are to be delicately balanced on
the basis of really relevant circumstances in a dispassionate manner
by the Court - Such act of balancing is indeed a difficult task.
(8) There is no foolproof formula for determining quantum of
sentence - Discretionary judgment in the facts of each case, is the
only way in which such judgment may be equitably distinguished.

(9) Offences against women, dacoity, kidnapping,

misappropriation of public money, treason and other offences
involving moral turpitude or moral delinquency which have
great impact on social order, and public interest, cannot be lost
sight of and per se require exemplary treatment - Any liberal
attitude by imposing meagre sentences or taking too
sympathetic view merely on account of lapse of time in respect
of such offences will be result-wise counter-productive in the
long run and against societal interest.
[Paras 11 and 12]

D. Indian Penal Code, Section 304 Parts I and II - Assault by accused in course of
sudden quarrel - Deceased sustained injuries inflicted with lathis and axes - All
injuries on non-vital parts - High Court rightly altered sentence from Sections 302
Indian Penal Code to 304 Part-I - This case could also fall under Section 304 Part-
II - Accused sentenced to 6 years R.I. and to pay fine of Rs. 10,000.

[Paras 6 and 17]

Cases referred :
Mahesh v. State of M.P., (1987)2 SCR 710).
Sevaka Perumal v. State of Tamil Naidu, 1991(2) RCR(Crl.) 427 (SC) .
Dennis Councle MCGDautha v. State of Callifornia, 402 US 183 : 28 L.D. 2d 711.
JUDGMENT

Arijit Pasayat, J. - In our country where large number of people live below the poverty
line, destruction of a small quantity of crops, that too by animals in many cases lead to
fights and invariably loss of lives. These are normally not pre-meditated and tempers rise at
the spot, physical force is used and by the time sanity prevails, damage is done. Neighbours
or even friends and relatives forget the existing comity, and animal instincts take over. The
case at hand belongs to such category of cases.

2. These two appeals are inter-linked being directed against the same judgment rendered
by a Division Bench of the Rajasthan High Court at Jodhpur. By the impugned judgment the
High Court altered conviction of the 5 respondents from Section 302 read with Sections 149
and 148, 341 of the Indian Penal Code, 1860 (in short 'the Indian Penal Code') to Section
304 Part I read with Sections 149, 148 and 341 Indian Penal Code. Criminal appeal No.
646/1999 has been filed by the informant while criminal appeal No. 647/1999 has been filed
by the State of Rajasthan.

3. Five respondents (hereinafter referred to as the 'accused') were found guilty of the
offences punishable under Section 302 read with Sections 149 and 148, 341 of the Indian
Penal Code by the trial Court. Instead of life imprisonment as awarded for the first offence,
the High Court restricted the custodial sentence to the period undergone which was about 3
years. Accused persons had not seriously contested the occurrence before the High Court.
They have only contended that the offence was not covered by Section 302 read with
Section 149.

4. A brief reference to the factual aspects would be necessary.

5. On 9.3.1995 over a trifle issue of damage of crop by goats there was altercation between
Adu Ram-informant (appellant in criminal appeal No. 646/1999) and Poora Ram (hereinafter
referred to as the 'deceased') on one side and the accused persons on the other. According
to the informant, when he noticed that the goats of the accused Chola had damaged part of
the crop, there was exchange of hot words and the respondents-accused surrounded the
deceased with the intention to kill him, started beating him with lathies and axes resulting
his instantaneous death. Information was lodged at the police station and investigation was
undertaken and on completion thereof the charge sheet was placed.

6. Fourteen witnesses were examined to further the prosecution version. While the accused
persons took the plea that they have found the dead body of the deceased in their fields
and with the suspicion that they had caused his murder, they have been implicated. The
trial court placed reliance on the evidence of eye-witness i.e. Ruparam (PW-1), Prahlad
(PW-5) and Lata (PW-11). It is to be noted that doctor (PW-2) who conducted the post
mortem found 34 injuries including several fracture injuries. Accordingly, the trial Court
recorded conviction as aforesaid. The High Court noted the fact that the fracture injuries
were all seen on the hand and other non-vital parts of the body and there was no grievous
injury on the head. All the injuries on the head were simple in nature. Accordingly, the
conviction was altered to Section 304 Part I Indian Penal Code. Taking note of the fact that
sometime has been spent during trial, custodial sentence was reduced to the period
undergone. The fine from Rs. 2,000/- was enhanced to Rs. 10,000/-. It was directed that
the fine as awarded if deposited, is to be paid to the widow of the deceased as
compensation.

7. Learned counsel for the appellants submitted that alteration of conviction is indefensible.
In any event, the imposition of sentence to period undergone is clearly irrational.

8. Learned counsel for the respondents-accused, however, submitted that there was no
injury noticed on any vital part. On the other hand injuries on different part of the body
clearly indicate that no particular injury was intended. As a matter of fact, there were only
simple injuries on the vital parts of the body.

9. It was further submitted that considering long passage of time the custodial sentence as
imposed is proper. It was pointed out that grievances of the prosecution party have been
taken care of by the direction to pay compensation to the widow of the deceased by
enhancing fine amount.

10. So far as the alteration of conviction is concerned, we find that the High Court has
recorded adequate reasons for altering conviction. The number of injuries is always not
determinative of the offence. It would depend on the weapon used, place where the injuries
were inflicted and the nature of the injuries. Further, the assaults appear to have been
made in the course of quarrel. That being so, no serious infirmity is noticed in the High
Court's view regarding the conviction. In fact, this is a case which falls under Section 304
Part II Indian Penal Code.

11. The law regulates social interests, arbitrates conflicting claims and demands. Security of
persons and property of the people is an essential function of the State. It could be
achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural
conflict where living law must find answer to the new challenges and the courts are required
to mould the sentencing system to meet the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of society and stamping out criminal
proclivity must be the object of law which must be achieved by imposing appropriate
sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the
challenges confronting the society. Friedman in his "Law in Changing Society" stated that,
"State of criminal law continues to be - as it should be - a decisive reflection of social
consciousness of society". Therefore, in operating the sentencing system, law should adopt
the corrective machinery or the deterrence based on factual matrix. By deft modulation
sentencing process be stern where it should be, and tempered with mercy where it warrants
to be. The facts and given circumstances in each case, the nature of the crime, the manner
in which it was planned and committed, the motive for commission of the crime, the
conduct of the accused, the nature of weapons used and all other attending circumstances
are relevant facts which would enter into the area of consideration. For instance a murder
committed due to deep-seated mutual and personal rivalry may not call for penalty of
death. But an organised crime or mass murders of innocent people would call for imposition
of death sentence as deterrence. In Mahesh v. State of M.P., (1987)2 SCR 710, this
Court while refusing to reduce the death sentence observed thus :

"It will be a mockery of justice to permit the accused to escape the extreme
penalty of law when faced with such evidence and such cruel acts. To give the
lesser punishment for the accused would be to render the justicing system of
 the country suspect. The common man will lose faith in courts. In such cases,
he understands and appreciates the language of deterrence more than the
reformative jargon."

12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine the public confidence in the efficacy of law and society could
not long endure under such serious threats. It is, therefore, the duty of every court to
award proper sentence having regard to the nature of the offence and the manner in which
it was executed or committed etc. This position was illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil Naidu, 1991(2) RCR(Crl.) 427 (SC) .

13. The criminal law adheres in general to the principle of proportionality in prescribing
liability according to the culpability of each kind of criminal conduct. It ordinarily allows
some significant discretion to the Judge in arriving at a sentence in each case, presumably
to permit sentences that reflect more subtle considerations of culpability that are raised by
the special facts of each case. Judges in essence affirm that punishment ought always to fit
the crime; yet in practice sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even
the tragic results of his crime. Inevitably these considerations cause a departure from just
desert as the basis of punishment and create cases of apparent injustice that are serious
and widespread.

14. Proportion between crime and punishment is a goal respected in principle, and in spite
of errant notions, it remains a strong influence in the determination of sentences. The
practice of punishing all serious crimes with equal severity is now unknown in civilized
societies, but such a radical departure from the principle of proportionality has disappeared
from the law only in recent times. Even now for a single grave infraction drastic sentences
are imposed. Anything less than a penalty of greatest severity for any serious crime is
thought then to be a measure of toleration that is unwarranted and unwise. But in fact,
quite apart from those considerations that make punishment unjustifiable when it is out of
proportion to the crime, uniformly disproportionate punishment has some very undesirable
practical consequences.

15. After giving due consideration to the facts and circumstances of each case, for deciding
just and appropriate sentence to be awarded for an offence, the aggravating and mitigating
factors and circumstances in which a crime has been committed are to be delicately
balanced on the basis of really relevant circumstances in a dispassionate manner by the
Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in
Dennis Councle MCGDautha v. State of Callifornia, 402 US 183 : 28 L.D. 2d 711 that
no formula of a foolproof nature is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite variety of circumstances that
may affect the gravity of the crime. In the absence of any foolproof formula which may
provide any basis for reasonable criteria to correctly assess various circumstances germane
to the consideration of gravity of crime, the discretionary judgment in the facts of each
case, is the only way in which such judgment may be equitably distinguished.

16. Imposition of sentence without considering its effect on the social order in many cases
may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to
offences against women, dacoity, kidnapping, misappropriation of public money, treason
and other offences involving moral turpitude or moral delinquency which have great impact
on social order, and public interest, cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic
view merely on account of lapse of time in respect of such offences will be result-wise
counter-productive in the long run and against societal interest which needs to be cared for
and strengthened by string of deterrence inbuilt in the sentencing system.

17. In the instant case taking note of the background facts and special features of the case
custodial sentence of six years would serve the ends of justice. Normally, sentence of
conviction for offence relatable to Section 304 Part I Indian Penal Code would be more. But
this is a case which could be, on the facts of the case covered under Section 304 Part II
Indian Penal Code. Though there is no appeal on behalf of the accused persons, the same is
apparently because of reduction of sentence. The enhanced fine has to be deposited, if not
already done, within two months from today. In case the fine is not deposited the default
custodial sentence will be two years RI.

Appeals are accordingly disposed of.

Appeals disposed of.

A. Bhaskaran @ Arunacholam Bhaskaran v. Central Bureau of Investigation (Calcutta)

2014(1) Cal. L.T. 493

CALCUTTA HIGH COURT

Before :- Joymalya Bagchi, J.

C.R.R. 2688 of 2013. D/d. 02.12.2013.

A. Bhaskaran @ Arunacholam Bhaskaran - Petitioner

Versus
Central Bureau of Investigation & Anr. - Respondents

For the Petitioner :- Krishnendu Bhattacharyya, Advocate.

For the CBI :- Himangshu De and Mrityunijoy Chatterjee, Advocates.

Indian Penal Code 1860, Sections 12B, 420 and 468 - Prevention of Corruption Act,
1947, Sections 5(1)(d) and 5(2) - Petitioner challenges the impugned order
passed by the Magistrate dismissing his prayer for discharge - Petitioner along
with others accused of committing above offences causing loss to the Complainant
Bank - At the relevant time has was supervisor of the Bank and played a key role
in the conspiracy - However, the co-accused has been discharged from the case -
His discharge was affirmed by the Supreme Court - Petitioner claims that he also
stands at par with his co-accused and deserves to be discharged - He also prays
for his discharge on the ground of delay in disposal of the case - Held that the
allegations of fraud by an employee of the bank are very grave and have for
reaching consequences, amounting to moral turpitude - Prayer for quashing and
discharge rejected - Trial Court directed to hold day to day trial.

[Paras 20 to 22]

Cases Referred :

Gian Singh v. State of Punjab, (2013) 1 SCC (Cri) 160.

Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642.

Pankaj Kumar v. State of Maharashtra, (2008) 16 SCC 117.

Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364.

Santosh De v. Archana Guha, (1994) 2 SCC 420.

Sudarshanacharya v. Purushottamacharya, (2012) 9 SCC 241.

JUDGMENT

Joymalya Bagchi, J. - Order dated 27.06.2013 passed by learned 14th Metropolitan

Magistrate, Calcutta Proceeding in G.R. Case No. 1665/95 pending before the learned
Metropolitan Magistrate, 14th court, Calcutta arising out of R.C. Case No. 12/EOW/86 under
sections 120B /420 /468 of the Indian Penal Code read with sections 5(i)(d) and 5(2) of the
Prevention of Corruption Act, 1947 refusing to discharge the petitioner from the aforesaid
case has been assailed.

2. The prosecution case, as alleged, is that a criminal conspiracy was hatched between one
Pawan Kumar Ruia, and his associates on one hand and one Charles Solomon, the then
Calcutta Branch Manager of Tamilnad Mercantile Bank Ltd., the petitioner and others on the
other hand to the effect that from January 1985 to September 1985 the then Calcutta
Branch Manager of Tamilnad Mercantile Bank Ltd. on the other hand and pursuant thereto
the latter misused his official position and committed fraud in a pre-planned manner and
cheated the bank and wrongfully issued unauthorized overdrafts to the tune of
3,19,41,727/-, extended unauthorized credit through clearing cheques of outstanding
account to the tune of 422.80 lakhs, permitted illegal drawings against clearing to the
tune of 62,60,471/- and made illegal book transfers to the tune of 12,35,07,000/-, and
thereby enabled accused Pawan Kumar Ruia to illegally float 94 public limited companies
and falsely showed that the Bank had collected a sum of 15 against each company in such
public issue of equity and also failed to collect commission charges as Banker to such issue
causing wrongful loss to the tune of 24,18,470,000/- and wrongful gain to the group of
companies controlled by one Pawan Kumar Ruia. It is further alleged that the petitioner, as
the supervisor in the branch, played a key role in the conspiracy and wrote vouchers and
other documents relating to the accounts maintained in respect of the aforesaid fictitious
forms created by Pawan Kumar Ruia and also helped in passing of instruments
unauthorizedly enabling illegal transfer of funds for the purpose of conspiracy.

3. In conclusion of investigation, charge sheet was filed on 10.07.1995 under sections 120B
/419 /420 /467 /468 /471 /477A of the Indian Penal Code against the petitioner and six
other accused persons.

4. Proceeding against Pawan Kumar Ruia was quashed by this Court primarily on the
premise that the controversy had been amicably resolved by and between the bank and
various companies. Such order was affirmed by the Apex Court in its judgement and order
dated 15.07.1998.

5. Prayer for discharge was made by the petitioner claiming parity with Pawan Kumar Ruia,
as aforesaid. However, such prayer was turned down by the trial court on 31.07.2010 and
was affirmed by this Court in Criminal Revision No. 234 of 2010. Again the trial Court turned
down the same prayer on 22.03.2012. Similar prayer for discharge was again preferred and
turned down by the trial Court on 27.06.2013 which is challenged in this proceeding. In
course of this proceeding, supplementary affidavit has been filed and additional prayer has
been made to quash the proceeding on the ground of inordinate delay.

6. Mr. Bhattacharyya, learned counsel appearing for the petitioner, submitted that the
proceeding was quashed so far as it is related to the principal accused, Pawan Kumar Ruia
as the bank had amicably resolved the dispute. Accordingly, he prayed that the impugned
proceeding may also be quashed against the petitioner on parity. He further submitted that
the matter is pending for more than two decades and in view of the fact that the dispute
has been amicably resolved and the proceeding having been quashed in respect of the co-
accused, continuation of the same against the petitioner would be an abuse of the process
of Court and the same ought to be quashed in view of his fundamental right for speedy trial
under Article 21 of the Constitution of India. He relied upon Pankaj Kumar v. State of
Maharashtra,, (2008) 16 SCC 117 and an unreported decision dated 09.07.2013 of the
Apex Court in Appeal No. 888 of 2013 (Lokesh Kumar Jain v. State of Rajasthan) to
buttress his submission to quash the proceeding on the ground of delay.

7. Mr. De, learned senior counsel appearing for the CBI, submitted that the in view of the
law declared in Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364, and Gian
Singh v. State of Punjab & Anr.,, (2013) 1 SCC (Cri) 160, the proceeding ought not to
be quashed against the petitioner. He admitted that the proceeding has been quashed
against Pawan Kumar Ruia but, he submitted that prayer for discharge on such score was
turned down by this Court in Criminal Revision No. 234 of 2010. He also submitted that
similar relief may not be extended to the petitioner in the light of the law as subsequently
enunciated by the Apex Court in the aforesaid cases. He also submitted that the petitioner,
as a supervisor of the Bank, did not stand on the same footing as Pawan Kumar Ruia. He
further submitted that delay in disposal of the proceeding was not at the behest of the
prosecution. The accused persons had been absconding for a protracted period of time and
hence the trial could not be proceeded in the instant case. He submitted that the petitioner
had been preferring applications for discharge one after another on the self-same issue and
thereby contributing to the delay in the commencement of the trial. In this regard, he
referred to Santosh De & Anr. v. Archana Guha & Ors.,, (1994) 2 SCC 420.

8. Firstly, let me examine as to whether the proceeding is entitled to be quashed on the

principle of parity as such relief had been extended to Pawan Kumar Ruia. The petitioner
was an employee of Tamilnad Mercantile Bank and was working as a supervisor of the
branch wherein the co-accused Charles Solomon was the Branch Manager. Various accounts
of various companies belonging to Pawan Kumar Ruia were opened in the said branch.
Some of those companies were fictitious and non-existent. The petitioner, as the supervisor
of the branch, being a member of criminal conspiracy and in pursuance thereof, played a
key role by creating and falsifying entries in the said accounts and unauthorisedly passing
instruments in respect of such accounts. One of the principal issues which had weighed with
this Court while quashing the proceeding against Pawan Kumar Ruia was that he was not an
employee of the company and, therefore, the allegations of forgery and falsification of
accounts of the banking company did not arise against him. It may be profitable to refer to
the relevant portions of the said judgement in this regard. In paragraph 18 of the said
judgement it has been observed as follows:

18. It has been rightly contended on behalf of the petitioner that there is no
allegation against the accused petitioner Ruia, that he used as genuine any
document which he knew or had reason to believe to be a forged document.
It has further been observed in paragraph 20 of the judgement as follows:
20. ...Sri Roy has also submitted that the accused Pawan Kumar Ruia was not
an employee of the Tamilnad Mercantile Bank Ltd. and as such the documents
of the Bank were not in his custody, or within his reach and as such the
question of falsification of accounts by the accused Ruia does not arise at all
to which Sri Talukdar, appearing for the C.B.I. concedes. It is, therefore, clear
that the prosecution has failed to the establish the offences under sections
419, 420, 467, 468, 471 or 477 of the I.P.C. against P.K. Ruia in any of the
four cases filed against him.

9. On the other hand, the petitioner was the supervisor of the branch and in such capacity
he had played "a role in creating and/or writing the fictitious accounts and unauthorisedly
passing instruments in respect of such account". In this backdrop, it is difficult for me to
come to a conclusion that there is no allegation of forgery or falsification of accounts against
the petitioner like that in the case of Pawan Kumar Ruia. That apart, this issue had fallen for
decision while considering his earlier prayer for discharge and had been decided against the
petitioner in Criminal Revision No. 234 of 2010. There is no provision to review such
decision and reopen such issue afresh which, according to me, has been rightly decided
against the petitioner. In Rumi Dhar v. State of West Bengal,, (2009) 6 SCC 364, the
bank had entered into a settlement with the accused persons in respect of its dues and the
collateral criminal proceeding was sought to be quashed on such score. The Apex Court held
as follows:--

14. It is now a well-settled principle of law that in a given case, a civil

proceeding and a criminal proceeding can proceed simultaneously. Bank is
entitled to recover the amount of loan given to the debtor. If in connection
with obtaining the said loan, criminal offences have been committed by the
persons accused thereof including the officers of the Bank, criminal
proceedings would also indisputably be maintainable.
15. When a settlement is arrived at by and between the creditor and the
debtor, the offence committed as such does not come to an end. The
judgment of a tribunal in a civil proceeding and that too when it is rendered
on the basis of settlement entered into by and between the parties, would not
be of much relevance in a criminal proceeding having regard to the provisions
contained in Section 43 of the Evidence Act, 1872. The judgment in the civil
proceedings will be admissible in evidence only for a limited purpose.
16. It is not a case where the parties have entered into a compromise in
relation to the criminal charges. In fact, the offence alleged against the
accused being an offence against the society and the allegations contained in
the first information report having been investigated by the Central Bureau of
Investigation, the Bank could not have entered into any settlement at all. CBI
has not filed any application for withdrawal of the case. Not only a charge
sheet has been filed, charges have also been framed.

10. In Gian Singh v. State of Punjab & Anr.,, (2013) 1 SCC (Cri.) 160, the question as
to whether the proceeding can be quashed under section 482 Cr.P.C. in respect of non-
compoundable offences when settlement has been arrived by and between the parties fell
for decision. The Apex Court after considering all the previous authorities in that regard,
inter alia, came to the following finding:

57. Quashing of offence or criminal proceedings on the ground of settlement

between an offender and victim is not the same thing as compounding of
offence. They are different and not interchangeable. Strictly speaking, the
power of compounding of offences given to a court under Section 320 is
materially different from the quashing of criminal proceedings by the High
Court in exercise of its inherent jurisdiction. In compounding of offences,
power of a criminal court is circumscribed by the provisions contained in
Section 320 and the court is guided solely and squarely thereby while, on the
other hand, the formation of opinion by the High Court for quashing a criminal
offence or criminal proceeding or criminal complaint is guided by the material
on record as to whether the ends of justice would justify such exercise of
 power although the ultimate consequence may be acquittal or dismissal of
indictment.
58. Where the High Court quashes a criminal proceeding having regard to the
fact that dispute between the offender and the victim has been settled
although the offences are not compoundable, it does so as in its opinion,
continuation of criminal proceedings will be an exercise in futility and justice
in the case demands that the dispute between the parties is put to an end
and peace is restored; securing the ends of justice being the ultimate guiding
factor. No doubt, crimes are acts which have harmful effect on the public and
consist in wrong doing that seriously endangers and threatens the well-being
of the society and it is not safe to leave the crime- doer only because he and
the victim have settled the dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made compoundable in law, with
or without permission of the Court. In respect of serious offences like murder,
rape, dacoity, etc, or other offences of mental depravity under IPC or offences
of moral turpitude under special statutes, like the Prevention of Corruption
Act or the offences committed by public servants while working in that
capacity, the settlement between the offender and the victim can have no
legal sanction at all. However, certain offences which overwhelmingly and
predominantly bear civil flavour having arisen out of civil, mercantile,
commercial, financial, partnership or such like transactions or the offences
arising out of matrimony, particularly relating to dowry, etc. or the family
dispute, where the wrong is basically to the victim and the offender and the
victim have settled all disputes between them amicably, irrespective of the
fact that such offences have not been made compoundable, the High Court
may within the framework of its inherent power, quash the criminal
proceeding or criminal complaint or F.I.R. if it is satisfied that on the face of
such settlement, there is hardly any likelihood of the offender being convicted
and by not quashing the criminal proceedings, justice shall be casualty and
ends of justice shall be defeated. The above list is illustrative and not
exhaustive. Each case will depend on its own facts and no hard and fast
category can be prescribed.

11. From the aforesaid ratio it is clear that in cases involving serious offences or offences of
mental depravity or moral turpitude a settlement between the parties would not obliterate a
criminal prosecution. It is only in cases that have overwhelmingly and predominantly civil
flavour arising from commercial transactions or offences arising from matrimonial dispute, a
settlement between the parties may give justification to quash the criminal proceeding as
continuation of such criminal proceeding in the backdrop of an amicable settlement inter se
would defeat the ends of justice.

12. Prosecution in the instant case had been launched in the backdrop of a large scale fraud
wherein the officers of the bank had conspired with others to permit unauthorised
transactions in accounts created and maintained on behalf of the fictitious companies.
Petitioner was the then supervisor of the branch and abused his official position and thereby
prepared false and fabricated entries in accounts of such fictitious companies,
unauthorisedly cleared instruments in respect of such accounts to facilitate the conspiracy.
Quashing was permitted in respect of the accused who controlled the fictitious firms, namely
Pawan Kumar Ruia primarily on the ground that the bank had resolved the dispute with him
in civil forum and had withdrawn allegations against him. The allegations per se are most
grave and involves moral turpitude so far as the petitioner, an employee of the company, is
concerned. Its impact is far reaching and does not only does affect the business interest of
the bank alone. A banking company in the course of its business received deposits from its
customers and/or constituents. Financial fate of such customers and/or constituents are
intrinsically entwined with the proper management of the business of such banking
company. When the officers of such a bank indulge in fraudulent trading they not only cause
irreparable damage to the banking company itself but also betray the fiduciary relationship
with their customers/constituents and adversely affect the financial prospect of such
customers/constituents who had reposed in them. The factual matrix of the instant case
therefore by no stretch of imagination can be said to have arisen from a simple commercial
relationship between two individuals who have not amicably put to a hiatus to their dispute.
The effects of fraud allegedly perpetrated by the petitioner and others, officers of the Bank
in the instant case is of far reaching consequence which in view of law declared in Gian
Singh (supra) cannot be one which falls in the species of cases involving private commercial
transactions between individuals where criminal prosecution may be quashed by settlement
between the said individuals.

13. That apart, the petitioner being an employee of the bank stands on a different fiduciary
relationship with the bank and/or its customers/constituents unlike Pawan Kumar Ruia. In
such capacity, he had control and dominance over relevant documents and records of the
bank, which authority he abused to allegedly fabricate documents and falsify accounts in a
wanton manner to commit the fraud. These allegations, as it appears from the observations
in the aforesaid judgement in Pawan Kumar Ruia's case, is significantly absent so far as the
latter is concerned. Hence, I am unable to extend the relief of quashing to the petitioner on
the ground of parity as the impugned proceeding had been quashed in respect of co-
accused Pawan Kumar Ruia.

14. The other issue on which the proceeding has been challenged is inordinate delay in
disposal of the case. It has been argued that the proceeding has been pending since 1995
when charge-sheet was filed. Hence, the same ought to be quashed on the ground of delay
alone.

15. I have perused the materials on record and I find a part of the delay in the instant case
is attributable to systematic causes and infrastructural reasons, e.g. absence of judicial
personnel, etc. Such delay cannot be attributed to the prosecution in any manner
whatsoever.

16. Another major contributing factor to the delay is the abscondence of co-accused persons
which has significantly contributed to the slow progress in the instant case. Although it is
strenuously argued on behalf of the petitioner that he did not abscond, one cannot lose
sight of the fact that the failure of co-accused persons to attend the proceeding cannot be a
ground to quash the same by attributing such delay to the prosecuting agency. I also find
that the petitioner has in a covert manner attempted to stultify the progress of trial in the
instant case by repeatedly taking out applications for discharge almost on self-same issues.
Firstly, his prayer for discharge was turned down on 11.07.2010 which was affirmed by this
Court in Criminal Revision No. 234 of 2010. Thereafter, he again prayed for discharge on
similar grounds which was turned down on 22.03.2012. Presently, again he has prayed for
discharge on similar grounds which was turned down by the impugned order dated
20.07.2013. Such repeated prayers for discharge by the petitioner on the self-same grounds
cannot be said to be bonafide and clearly demonstrates that such process of law is being
abused by him as a subterfuge to engender delay.

17. In similar circumstances the Apex Court in Santosh De (supra) lamented as follows:--

15. The facts of this case impel us to say how easy it has become today to
delay the trial of criminal cases. An accused so minded can stall the
proceedings for decades together, if he has the means to do so. Any and
every single interlocutory is challenged in the superior courts and the superior
courts, we are pained to say, are falling prey to their stratagems. We expect
the superior courts to resist all such attempts. Unless a grave illegality is
committed, the superior courts should not interfere. They should allow the
court which is seized of the matter to go on with it. There is always an
appellate court to correct the errors. One should keep in mind the principle
behind Section 465 Cr.P.C. Any and every irregularity or infraction of a
procedural provision cannot constitute a ground for interference by a superior
court unless such irregularity or infraction has caused irreparable prejudice to
the party and requires to be corrected at that stage itself. Such frequent
interference by superior courts at the interlocutory stages tends to defeat the
ends of justice instead of serving those ends. It should not be that a man with
enough means is able to keep the law at bay. That would mean the failure of
the very system.

18. The factual matrix of the instant case is clearly different from that in the cases relied
upon by the petitioner, namely, Lokesh Kumar Jain v. State of Rajasthan and Pankaj
Kumar (supra). In both the aforesaid reports the delay was primarily due to the indolence
of the prosecution and no part of delay was attributable to the conduct of the accused
persons.

19. In Sudarshanacharya v. Purushottamacharya & Anr.,, (2012) 9 SCC 241, the

Apex Court held that although accused has a right to speedy trial, quashing of proceeding
on the ground of delay cannot be permitted when the prosecution was not negligent or
casual and the accused persons were majorly responsible for the delay. Advocating a
stricter parameter in cases dealing with corruption, embezzlement, fraud and forgery, the
Apex Court in Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra,,
(2013) 4 SCC 642, held as follows:--

16. In Abdul Rehman Antulay v. R.S. Nayak, a proponement was

advanced that unless a time limit is fixed for the conclusion of the criminal
proceedings, the right to speedy trial would be illusory. The Constitution
 Bench, after referring to the factual matrix and various submissions, opined
that there is a constitutional guarantee of speedy trial emanating from Article
21 which is also reflected in the Code of Criminal Procedure. Thereafter, the
Court proceeded to state as follows:-
83. But then speedy trial or other expressions conveying the said concept-are
necessarily relative in nature. One may ask-speedy means, how speedy? How
long a delay is too long? We do not think it is possible to lay down any time
schedules for conclusion of criminal proceedings. The nature of offence, the
number of accused, the number of witnesses, the workload in the particular
court, means of communication and several other circumstances have to be
kept in mind.
After so stating, the Court gave certain examples relating to a murder trial
where less number of witnesses are examined and certain trials which involve
large number of witnesses. It also referred to certain offences which, by their
very nature, e.g., conspiracy cases, cases of misappropriation,
embezzlement, fraud, forgery, sedition, acquisition of disproportionate assets
by public servants, cases of corruption against high public officials, take
longer time for investigation and trial. The Court also took note of the
workload in each court, district, region and State-wise and the strikes by the
members of the Bar which interfere with the work schedules. The Bench
further proceeded to observe that in the very nature of things, it is difficult to
draw a time limit beyond which a criminal proceeding will not be allowed to
go, and if it is a minor offence, not an economic offence and the delay is too
long, not caused by the accused, different considerations may arise but each
case must be left to be decided on its own facts and the right to speedy trial
does not become illusory when a time-limit is not fixed.

(emphasis supplied)

It concluded:--

24. It is to be kept in mind that on one hand, the right of the accused is to
have a speedy trial and on the other, the quashment of the indictment or the
acquittal or refusal for sending the matter for re- trial has to be weighed,
regard being had to the impact of the crime on the society and the confidence
of the people in the judicial system. There cannot be a mechanical approach.
From the principles laid down in many an authority of this Court, it is clear as
crystal that no time limit can be stipulated for disposal of the criminal trial.
The delay caused has to be weighed on the factual score, regard being had to
the nature of the offence and the concept of social justice and the cry of the
collective.

20. In the factual matrix of the instant case, as discussed herein above, I am unwilling to
quash the impugned proceeding merely on the ground of delay.

21. Mr. Bhattacharyya has finally raised the issue that copies of documents which have been
supplied by the prosecution under section 207 Cr.P.C. are illegible.

22. In view of such submission, I dispose of this application directing that the petitioner
shall indicate to the trial Court within seven days from the communication of this order
particulars of the documents supplied, which according to him, are illegible. Trial Court upon
due consideration of such fact shall supply to the petitioner legible copies of such documents
(if necessary) within a fortnight thereof. The proceeding in the instant case shall be
conducted on a day to day basis and be concluded at an early date.

With the aforesaid directions, the revisional application is disposed of.

Petition dismissed.
M/s. Bhaskar Ind. Ltd. v. M/s. Bhiwani Denim & Apparels Ltd., (SC)

2001(4) Crimes (SC) 199 : 2002(2) BCR 265 : 2002(1) Mh.LJ 81 : 2001(4) R.C.R.(Criminal)
137 : 2001 AIR (SC) 3625 : 2001 CriLJ 4250 : 2001 DCR 602 : 2001(4) AICLR 18 : 2002(1)
ISJ (Banking) 524 : 2001(7) SCC 401 : 2001(5) Scale 503 : 2001(7) JT 127 : 2001 SCC(Cri)
1254 : 2001 SCR 219 : 2001(3) M.P.L.J. 664 : 2001 AIR (SCW) 3413 : 2001(2) Ori. Law
Rev. 613 : 2001(6) Supreme 339 : 2003(1) JabLJ 56 : 2001(4) All WC 2981 : 2001(3) KLT
307 : 2001(3) Cal. H.C.N. (SC, Suppl) 63 : 2001 CriLR (SC) 851 : 2001 ALL MR(Cri) 1961 :
2001(3) CTC 698

SUPREME COURT OF INDIA

Before :- K.T. Thomas and K.G. Balakrishnan, JJ.

Criminal Appeal No. 858 of 2001 (Arising out of S.L.P. (Criminal) No. 1633 of 2001). D/d.
27.8.2001

M/s. Bhaskar Industries Ltd. - Appellant

Versus
M/s. Bhiwani Denim & Apparels Ltd. - Respondent

For the Petitioner :- Dr. Abhishek M. Singhvi, Sr. Advocate with Mr. Niraj Sharma and Mr.
N.K. Modi, Advocates.

For the Respondent No. 2 :- Mr. Anoop Choudhary, Sr. Advocate, Mr. Sanjay Sarin and Mr.
Ashok Mathur, Advocates.

For the State :- Ms. Vibha Datta Makhija, Mr. Uma Nath Singh, Ms. Bharti, Advocates.

A. Negotiable Instruments Act, 1881, Section 138 - Criminal Procedure Code,

1973, Sections 317, 251 and 205 - Prosecution under Section 138 of Negotiable
Instruments Act - Case be tried as summons case - In view of inter-State
transactions accused may be belonging to distant States and places - Magistrate
may dispense with even first appearance of accused provided accused is
represented by counsel - If subsequently the counsel does not co- operate,
Magistrate can direct the personal attendance of accused at any stage of
proceedings.

[Paras 17, 18 and 19]

B. Criminal Procedure Code, 1973, Section 397(2) - Interlocutory order - No

revision lies against interlocutory order - Whether an order is interlocutory order
or not - Test to determine :-
(i) If the contention of the petitioner who moves the superior court in revision, as
against the order under challenge is upheld, would the criminal proceedings as a
whole culminate ? If it would, then the order is not interlocutory in spite of the
fact that it was passed during any interlocutory stage.
(ii) An order rejecting the plea of the accused on a point which, when accepted,
will conclude the particular proceeding, will be not an interlocutory order within
the meaning of Section 397(2). 1999(1) RCR (Crl.) 800 (SC) and 2000(2) RCR
(Crl.) 863 (SC) relied.

[Paras 8 and 9]

C. Criminal Procedure Code, 1973, Sections 317, 273, 251 and 205 - Criminal trial -
Court can dispense with personal appearance of accused :-
(i) When the accused persistently disturbs the proceedings.
(ii) If a court is satisfied that in the interest of justice the personal attendance of
an accused before it need not be insisted on.
(iii) If a court feels that insisting on the personal attendance of an accused in a
particular case would be too harsh on account of a variety of reasons, cannot the
court afford relief to such an accused in the matter of facing the prosecution
proceedings ?

[Paras 13 and 14]

D. Negotiable Instruments Act, 1881, Section 138 - Dishonour of cheque -
Prosecution under 138 of Negotiable Instruments Act - It is a summons case.

[Para 15]

Cases referred :

Madhu Limaye v. State of Maharashtra, AIR 1978 Supreme Court 47 : 1977(4) SCC 551.

V.C. Shukla v. State through CBI, AIR 1980 Supreme Court 962 : 1980 Supple. SCC 92.

Rajendra Kumar Sitaram Pande & ors. v. Uttam and anr., 1999 (1) RCR (Crl.) 800 (SC) :
1999(3) SCC 134.

K.K. Patel and anr. v. State of Gujarat and anr., 2000(2) RCR (Crl.) 863 (SC) : 2000(6) SCC
195.

JUDGMENT

K.T. Thomas, J. - Leave granted.

2. A Sessions Judge, overlooking a legal interdict, interfered with an interlocutory order and
created a situation for the trial magistrate to remain nonplussed. That order of the Sessions
Judge was sought to be rectified at the behest of the appellant who, for that purpose,
moved the High Court. But a learned Single Judge of the High Court declined to interfere.
Now the trial magistrate might be under a dilemma as to what is the proper course for him
to adopt.

3. The facts lie in a narrow compass. Appellant company filed a criminal complaint before
the court of Judicial Magistrate of First Class, Bhopal (M.P.) against 15 accused for the
offence under Section 138 of the Negotiable Instruments Act. The first accused in the
complaint is a company having its registered office at Bhiwani in Haryana. Second accused
is the Managing Director of that company. All the remaining accused are persons said to be
associated with the first accused-company and they are all living in far distant places from
Bhopal, some are in Haryana while some others are in Chandigarh and some others are in
New Delhi. The magistrate took cognizance of the offence and issued summons to the
accused. It is not necessary to narrate what happened to the summons issued to the
various accused except in the case of the second accused, because this appeal is now
restricted to the order concerning the second accused who is arrayed as the second
respondent in the special leave petition.

4. On 28.4.2000 the trial magistrate recorded that the notice issued to the second accused
(Subhash Sahni) was received back with the report that he was not seen at his residence,
the address of which was shown on the notice. When other members of the said house
refused to accept the notice it was affixed on the house. On the said circumstances the
magistrate issued bailable warrants to the accused. Second accused filed an application for
exemption from personal appearance. Pending the same, the magistrate ordered him to be
released on bail if arrested and directed him to be present in the Court for the purpose of
furnishing security by executing a bond for Rs. 5,000/-.

5. All the accused filed a revision petition before the Sessions Court against the order
passed by the Magistrate on 28.4.2000. Learned Sessions Judge (Shri Ranjit Singh, VIth
Additional Sessions Judge, Bhopal) minuted that the advocate for the second accused had
given an undertaking that he shall appear before the trial Court on behalf of his client. After
recording the above submission made by the advocate the Sessions Judge passed an order
the operative part of which is as follows :

"From the analysis of evidence above (sic) it is clear that the impugned order
of the trial Court is not in accordance with law. Thus, the question under
consideration is decided in negative. On the basis of the aforesaid analysis, I
reach a conclusion that the impugned order of the trial Court being not in
accordance with law does not deserve to be maintained. Therefore, this
revision petition is allowed and the impugned order of the trial Court dated
28.4.2000 is set aside."

6. When he set aside the order of the magistrate dated 28.4.2000, what should the
magistrate do thereafter as against second accused ? We could not discern it, and we can
imagine the dilemma of the magistrate as to the course to be adopted thereafter. If a
Sessions Judge chooses to pass such a vague and confusing order what could the
subordinate court do. The confusion got confounded when the Sessions Judge set aside the
order of the magistrate without substituting with any other direction or order and
consequently the stage was set in a quandary. It was the said order which the respondent-
complainant challenged before the High Court. But the confused situation was not defused
by the High Court as learned Single Judge declined to interfere with the order of the
Sessions Court.

7. Dr. Abhishek M. Singhvi, learned senior counsel for the appellant/complainant first
contended that the respondents could not move the High Court in revision against the order
dated 28.4.2000 which was purely an interlocutory order. At the first blush we thought that
the contention was sustainable, but there are two drawbacks for the appellant to raise such
a contention. First is that the appellant did not raise any such contention before the High
Court and hence it is not permissible for him to raise it for the first time in this appeal by
special leave. Second is that it is difficult, in the absence of other materials, to decide
positively whether the order dated 28.4.2000 is an interlocutory order only.

8. The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short 'the
Code') is that the powers of revision shall not be exercised in relation to any interlocutory
order. Whether an order is interlocutory or not, cannot be decided by merely looking at the
order or merely because the order was passed at the interlocutory stage. The safe test laid
down by this Court through a series of decisions is this : If the contention of the petitioner
who moves the superior court in revision, as against the order under challenge is upheld,
would the criminal proceedings as a whole culminate ? If it would, then the order is not
interlocutory in spite of the fact that it was passed during any interlocutory stage.

9. A three-Judge Bench of this Court in Madhu Limaye v. State of Maharashtra, AIR

1978 Supreme Court 47 : 1977(4) SCC 551, laid down the following test : "An order
rejecting the plea of the accused on a point which, when accepted, will conclude the
particular proceeding, will surely be not an interlocutory order within the meaning of Section
397(2)." This was upheld by the four-Judge Bench of this Court in V.C. Shukla v. State
through CBI, AIR 1980 Supreme Court 962 : 1980 Supple. SCC 92.

10. The above position was reiterated in Rajendra Kumar Sitaram Pande & ors. v.
Uttam and anr., 1991(1) RCR(Crl.) 801 (SC) : 1999(3) SCC 134. Again in K.K. Patel
and anr. v. State of Gujarat and anr., 2000(2) RCR(Crl.) 863 (SC) : 2000(6) SCC
195, this Court stated thus :

"It is well-nigh settled that in deciding whether an order challenged is

interlocutory or not as for Section 397(2) of the Code, the sole test is not
whether such order was passed during the interim stage (vide Amar Nath v.
State of Haryana, Madhu Limaye v. State of Maharashtra, V.C. Shukla v.
State through CBI and Rajendra Kumar Sitaram Pande v. Uttam). The feasible
test is whether by upholding the objections raised by a party, it would result
in culminating the proceedings, if so any order passed on such objections
would not be merely interlocutory in nature as envisaged in Section 397(2) of
the Code. In the present case, if the objections raised by the appellants were
upheld by the Court the entire prosecution proceedings would have been
terminated. Hence, as per the said standard, the order was revisable."

11. At any rate the objection regarding maintainability of the revision petition should have
been raised before the Court which invoked such a revisional jurisdiction. Inasmuch as the
same was not done we leave that question undecided now.

12. We cannot part with this matter without adverting to the plea made by the second
accused before the trial Court for exempting him from personal appearance. He highlighted
two factors while seeking exemption. First is that the offence under Section 138 of the
Negotiable Instruments Act is relatively not a serious offence as could be seen from the fact
that the legislature made it only a summons case. Second is, the insistence on the physical
presence of the accused in the case would cause substantial hardships and sufferings to him
as he is a resident of Haryana. To undertake a long journey to reach Bhopal for making his
physical presence in the Court involves, apart from great hardships, much expenses also,
contended the counsel. He submitted that the advantages the Court gets on account of the
presence of the accused are far less than the tribulations the accused has to suffer to make
such presence in certain situations and hence the court should consider whether such
advantage can be achieved by other measures. Therefore, he relied on Section 317 of the
Code. It reads thus :
 "317. Provision for inquiries and trial being held in the absence of accused in
certain cases. - (1) At any stage of an inquiry or trial under this Code, if the
Judge or 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, or that the accused persistently disturbs the proceedings in Court,
the Judge or Magistrate may, if the accused is represented by a pleader,
dispense with his attendance and proceed with such inquiry or trial in his
absence, and may, at any subsequent stage of the proceedings, direct the
personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, or if the
Judge or Magistrate considers his personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded by him, either adjourn such
inquiry or trial, or order that the case of such accused be taken up or tried
separately."

13. Sub-section (1) envisages two exigencies when the court can proceed with the trial
proceedings in a criminal case after dispensing with the personal attendance of an accused.
We are not concerned with one of those exigencies i.e. when the accused persistently
disturbs the proceedings. Here we need consider only the other exigency. 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 that
accused. In this context a reference to Section 273 of the Code is useful. It says that
"except as otherwise expressly provided, all evidence taken in the course of the trial or
other proceedings shall be taken in the presence of the accused or, when his personal
attendance is dispensed with, in the presence of his pleader." If a court feels that insisting
on the personal attendance of an accused in a particular case would be too harsh on
account of a variety of reasons, cannot the court afford relief to such an accused in the
matter of facing the prosecution proceedings ?

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 primiarly 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.

15. These are days when prosecutions for the offence under Section 138 are
galloping up in criminal courts. Due to the increase of inter-State transactions
through the facilities of the banks it is not uncommon that when prosecutions are
instituted in one State the accused might belong to a different State, sometimes a
far distant State. Not very rarely such accused would be ladies also. For
prosecution under Section 138 of the Negotiable Instruments Act the trial should
be that of summons case. When a magistrate feels that insistence of personal attendance
of the accused in a summon case, in a particular situation, would inflict enormous hardship
and cost to a particular accused, it is open to the magistrate to consider how he can relieve
such an accused of the great hardships, without causing prejudice to the prosecution
proceedings.

16. Section 251 is the commencing provisions in Chapter XX of the Code which deals with
trail of summons cases by magistrates. It enjoins on the court to ask the accused whether
he pleads guilty when the "accused appears or is brought before the Magistrate". The
appearance envisaged therein can either be by personal attendance of the accused or
through his advocate. This can be understood from Section 205(1) of the Code which says
that "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."

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 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.

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 co-operate in proceeding with the case ? We
may point out that the legislature has taken care for 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.

19. The position, therefore, bogs 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
magistrate finds that insistence of his personal presence would itself inflict enormous
suffering or tribulations to 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.

20. In the result, we allow this appeal and set aside the order passed by the Sessions Judge
on 30.6.2000 (in Criminal Revision Petition 197/2000). However, this course is adopted
without prejudice to the rights of the second accused to move a fresh application seeking
relief under Section 317 of the Code. If any such application is filed the magistrate shall
pass orders thereon before proceeding further in the light of the observations made in this
judgment.

Appeal allowed.
2004(2) R.C.R.(Criminal) 921 : 2004 CriLJ 1457 : 2003(Suppl.) ACrC 635

JHARKHAND HIGH COURT

Before :- Amareshwar Sahay, J.

Cr.M.P. No. 281 of 2003. D/d. 13.3.2003

Firoza Khatoon and another - Petitioners

Versus
State of Jharkhand - Respondent

For the Petitioner :- Md. Mokhtar Khan, Advocate.

For the Respondent :- A.P.P.

Criminal Procedure Code, Section 205 - Indian Penal Code, 1860, Section 498-A -
Dowry Prohibition Act, Section 4 - Accused facing trial in an offence under Section
498-A Indian Penal Code and under Section 4 of Dowry Prohibition Act - Their
application seeking exemption from personal appearance dismissed - Provisions of
Section 205 Criminal Procedure Code can be invoked only in case of trivial in
nature or petty offence - Not in serious cases involving major offences like moral
turpitude or offence punishable with sentence of long imprisonment - Discretion to
dispense with the personal attendance should be exercised in rare cases. 2001(4)
RCR(Crl.) 137 (SC) relied.

[Paras 6, 7 and 8]

Cases referred :

Manoj Baid v. State of Bihar, (2002)4 Pat LJR 95 : (2002)3 BLJ 633.

Ram Harsh Das v. State of Bihar, (1998)1 Pat. LJR 502 : (1998)2 BLJR 902.
Bhaskar Industries Ltd. v. Bhiwani Denin and Apparels Ltd., 2001(4) RCR(Crl.) 137 (SC) :
(2001)7 SCC 401.
ORDER

Amareshwar Sahay, J. - Heard learned counsel for the petitioner and learned counsel for
the State.

2. In the present application, the petitioner has challenged the order dated 28.1.2003
passed by the Sub-Divisional Judicial Magistrate, Hazaribagh, whereby the petition filed by
the petitioner before the trial Court for dispensing with their personal appearance in Court
as envisaged under Section 205, Criminal Procedure Code has been rejected. The
petitioners are accused in a case under Section 498-A of the Indian Penal Code and Section
4 of Dowry Prohibition Act. The petitioners are said to be sisters of the husband of the
complainant.

3. The learned Sub-Divisioinal Judicial Magistrate, Hazaribagh after taking cognizance on

4.1.2002 for the offences under Section 498-A and Section 4 of Dowry Prohibition Act
issued summons to the accused persons including the petitioners for their appearance in
Court.

4. A petition under Section 205, Criminal Procedure Code was filed on behalf of the
petitioners before the trial Court stating inter alia that the petitioner, namely, Firoza
Khatoon lives in Mumbai, whereas the petitioner Afroza Khatoon lives at Chitarpur and both
belong to Muslim Community and in that view of the matter they prayed for dispensing with
the personal appearance in Court. Learned Magistrate considering the serious nature of the
allegations made against the petitioners and considering the fact that there were allegations
against the petitioners that they used to visit the place at Mumbai and used to abuse and
humiliate/torture the complainant and, therefore, rejected the prayer of the petitioners.
Learned counsel for the petitioner has also submitted that learned Magistrate has
committed error in rejecting the application under Section 205 Criminal Procedure Code on
the ground that in serious nature of cases the provision (application) under Section 205
cannot be allowed. In support of his contention learned counsel for the petitioner relied on a
decision of Patna High Court, reported in (2002) 4 Pat LJR 95.
5. In this judgment the learned single Judge of Patna High Court has held that if in the
warrant case, where if summon has been issued instead of warrant, the provision of Section
205, Criminal Procedure Code shall apply. It appears that before the learned single Judge
earlier decision of Patna High Court by a Division Bench reported in (1998) 1 Pat LJR 502
was not brought to the notice of the Court, wherein the Division Bench of Patna High Court
has held that the provision of Section 205 is not to be used to dispense with the personal
appearance of the accused facing prosecution in a serious cases involving major offences
like moral turpitude or an offence punishable with a sentence of long imprisonment.

6. In my view, the decision of Division Bench of the Patna High Court i.e. (1998)1 Pat LJR
502 is on sound proposition of law. Relying on the said judgment of the Division Bench this
Court is also of the opinion that legislature never intended that the provision of Section 205,
Criminal Procedure Code should be used to dispense with the personal appearance of the
accused facing prosecution in serious cases involving major offence like moral turpitude or
offence punishable with a sentence of long imprisonment.

7. Section 205, Criminal Procedure Code can be used for dispensing with the personal
appearance of the accused only in case of trivial in nature or petty offence in which at the
first instance the Court issues summon for appearance of the accused.

8. However, the Court should keep in its mind the decision of the Supreme Court in
Bhaskar Industries Ltd. v. Bhiwani Denin and Apparels Ltd., 2001(4) RCR(Crl.) 137
(SC) : (2001)7 SCC 401 : 2001 Cri LJ 4250 wherein it was held that discretion to
dispense with the personal attendance should be exercised in rare cases.

9. In that view of the matter, I find that the learned Sub-Divisional Judicial Magistrate has
not committed any error in rejecting the application of the petitioners for dispensing with
the personal appearance.

10. In the result there is no merit in this application. It is accordingly dismissed.

11. However, if at any subsequent stage of the trial, any application is filed by the
petitioners under Section 317, Criminal Procedure Code then it will be open for the
trial Court to exercise such discretion in accordance with law.

Application dismissed.

A.K. Bajoria Alias Arun Kumar Bajoria v. State of West Bengal, (Calcutta)
2001(1) AICLR 299 : 2000(1) Cal. H.C.N. 799

CALCUTTA HIGH COURT

Before :- Debiprasad Sengupta, J.

C.R.R. No. 2317 and 2309 of 1997. D/d. 7.4.2000.

A.K. Bajoria Alias Arun Kumar Bajoria - Petitioner

Versus
The State of West Bengal & Anr. - Respondents
For the Petitioner :- Mr. Balai Roy, Mr. Y Dastor, Advocate.
For the O.P. No. 2 :- Mr. D. Roy Chowdhury, Mr. Jayanta Dutta, Advocate.

Criminal Procedure Code, 1978, Section 205 - Foreign Exchange Regulation Act,
1973, Section 56 - Personal attendance - Exemption - Offence under FERA involved
moral turpitude - Application rightly rejected.

[Para 6]

JUDGMENT

Debiprasad Sengupta, J. - Since both the revisional applications being CRR No. 2317 of
1997 and CRR No. 2309 of 1997 are arising out of the same order, both the applications are
taken up together for hearing.

2. In CRR No. 2317 of 1997 the petitioner has challenged an order dated 4.6.97 passed by
the learned Chief Metropolitan Magistrate, Calcutta in Case No. C/632/96 rejecting the
petitioner's application under Section 205 of the Code of Criminal Procedure.

3. In April 1996 the Enforcement Directorate lodged a petition of complaint in the court of
learned Chief Metropolitan Magistrate, Calcutta alleging commission of an offence
punishable under Section 56 of the Foreign Exchange Regulation Act, 1973. The said
complaint was registered as Case No. C/632 of 1996. On receipt of such complaint the
learned Magistrate took cognizance of the offence and issued process for appearance of the
accused person. On receipt of summons the petitioner appeared through his Id. Advocate
and filed an application under Section 205 of the Code of Criminal Procedure with a prayer
for dispensing with the personal attendance of the petitioner and to permit him to be
represented at the trial by his Id. Advocate. By an order dated 4th June, 1997 the learned
Chief Metropolitan Magistrate, Calcutta rejected the petitioner's application under Section
205 of the Code of Criminal Procedure and directed him to be personally present in court on
July 14, 1997.

4. Mr. Balai Chandra Roy, learned Advocate appearing for the petitioner submits that in
connection with his various business activities, corporate and statutory duties and financial
dealings the petitioner has to travel to various places both the India and abroad. Further the
petitioner's presence is often required at short notices at his various jute mills to resolve
problems and disputes. In such circumstances it will be really difficult for the petitioner to
attend the court on each and every date. It is the further submission of Mr. Roy that the
case is one based on records which are in custody of the complainant. It is the further
submission of Mr. Roy that since the petitioner is not challenging his identity, his absence
before the Id. Court would not prejudice the prosecution in any way. Mr. Roy Chowdhury
the Id. Advocate appearing for the Opposite Party No. 2 opposes the present application and
submits that the impugned order rejecting the petitioner's application under Section 205 of
the Code of Criminal Procedure does not suffer from any illegality. Mr. Roy Chowdhury relies
on a judgment reported in (1994) 2 SCC 39. From the said judgment it appears that in a
proceeding for offences under Sections 376/417 and 506 Indian Penal Code the High Court
directed the trial court to dispense with the personal attendance of respondent/accused and
to permit him to appear by his Advocate. It was held by the Hon'ble Apex Court that the
reasons given by the High Court in dispensing with the personal attendance of the accused
by invoking the power under Section 205 of the Code of Criminal Procedure is untenable,
wherein serious allegations have been made against; the accused respondents. It was
directed by the Hon'ble Apex Court that the respondent accused should make his
appearance before the trial court on all the hearing dates when the material witnesses are
examined. Mr. Roy Chowdhury relies on another judgment reported in 1998 Calcutta
Criminal Law Reporters (Calcutta) page 393. In the said judgment it was held by the
Hon'ble Single Judge of this court as follows :
 "The petitioner has nothing to show that he ever appeared before the learned
Magistrate and honoured the summons issued upon him and the case being a
warrant procedure case, the petitioner cannot have indulgence to be
represented by the learned Advocate without appearing even once and even
without obtaining a bail. It is true that the petitioner being a resident of
Bombay, it is difficult for him to come to Siliguri every day or within a gap of
only short interval, but all these may be reconciled after his first appearance
before the learned Magistrate when he can pray before the learned Trial Court
that the case may be fixed after sufficient gap of time or be taken up
continuously for one or two or three days as the eventuality may be, so that
the petitioner can make harmony between his responsible duty and
responsibility towards the Court in a case under Section 420, Indian Penal
Code read with Section 120B of the same Code, personal appearance and
identification of the accused persons are actually required at times. So the
petitioner cannot get an omnibus latitude for not appearing before the Court
even once."

5. Mr. Roy Chowdhury cited another judgment reported in AIR 1998 Supreme Court page
696. In the said case it appears that the Enforcement Directorate under Foreign Exchange
Regulation Act moved the High Court challenging the order passed by the learned Sessions
Judge granting anticipatory bail to the accused person. In the said judgment it was held by
the Hon'ble Apex Court as follows :

"We have no doubt that the Division Bench of the High Court has gone
ostensibly wrong in passing the impugned order. When we perused the files
concerning the allegations against the respondent (which the Directorate had
made available to us) we strongly feel that any further loss of time would
further impair the effectiveness of the inquiry/or investigation into those
allegations. Considering the nature and seriousness of the allegations as well
as largeness of the amount involved we have no doubt that the order granted
by the City Sessions Judge should not remain alive. We are, therefore,
constrained to stretch the arms of the residual powers of this court to deal
with the said order also."
"In the result we set aside the impugned order passed by the Division Bench
of the Calcutta High Court and we also annual the pre-arrest bail order dated
25.4.1997 passed by the City Sessions Judge. The petition filed by the
appellant before the Calcutta High Court for cancellation of the bail order will
stand disposed of in the above terms. Appeal is accordingly allowed."

6. I have heard the learned Advocates of the respective parties, I have also gone through
the impugned order dated 4.6.97 passed by the ld. Magistrate and in my considered opinion
there is nothing wrong in the said order and the ld. Magistrate rightly rejected the
application under Section 205 of the Code of Criminal Procedure filed by the petitioner.
From the impugned order it appears that applications under Section 205 was rejected by
the ld. Magistrate on the ground that the petitioner has violated Foreign Exchange
Regulation Act to the tune of US $ 89,367.76 and huge number of documents have been
recovered from the residence of the accused person. The allegation against the accused
petitioner is very serious in nature and in a case like this the personal appearance of the
accused petitioner cannot be dispensed with by invoking the power under Section 205 of the
Code of Criminal Procedure. The ld. Magistrate rightly observed that if such privilege is
given to the accused person in a case of this nature, people will lose their confidence in the
administration of justice.

7. In have carefully gone through the impugned order as also the other connected papers
which are annexed to the revisional application and I am of the view that the impugned
order does not suffer from any illegality which warrants interference by this court.
Accordingly the revisional application fails and the same is dismissed.

8. Since the application being CRR No. 2309 of 1997 is arising out of the same order dated
4th June, 1997 passed by the ld. Chief Metropolitan Magistrate, Calcutta in Case No.
C/632/96 rejecting the petitioner's application under Section 205 Criminal Procedure Code,
the same is also dismissed in the light of observation made herein above.

9. The Lower Court records may be sent down to the court below immediately.

10. Let certified copy of the order passed today if applied for be supplied to the parties
expeditiously.

Orders accordingly.