Nagendra Rai, J.
1. In both cases, some of the points involved are common and as such they have been heard together and are being disposed of by this common judgment.
2. The petitioner in Cr. Misc. No. 7878 of 1996 is Ram Harsh Das and he has filed this application for quashing the order dated 12.4.1996, passed by the Special Judge, South Bihar, Patna in Crime No. R.C. 43/86, Special Case No. 79/86, taking cognizance under Sections 120B, 420, 409, 477A of the Indian Penal Code (in short 'I.P.C.') and 5(2), read with Section 5(1)(c) & (d) of the Prevention of Corruption Act, 1947, corresponding to Section 13(2), read with 13(2) (c) and (d) of the Prevention of Corruption Act, 1988.
3. Ajit Dutt is petitioner in Cr. Misc. No. 13551 of 1996. Initially, he filed the application for quashing the order dated 14.6.1996, passed by the Special Judge, South Bihar, Patna, in Special Case No. 81 of 1986, R.G. Case No. 45/86, by which, he rejected the prayer of the petitioner to recall the warrant of arrest issued against him and also rejected the prayer of the petitioner to dispense with his personal appearance and permit him to appear through Advocate as provided under Section 205 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Later on, he also challenged the order dated 12.4.1996, by which cognizance has been taken under Sections 120B, 420, 468, 471 and 477 of the I.P.C., read with Section 5(1) of the Prevention of Corruption Act, 1947, corresponding to Section 13(2) (c) & (d), read with Section 13A of the Prevention of Corruption Act, 1988.
3. The Government of Bihar in the year 1986 received a complaint about large scale bungling and manipulation in the purchase of articles by the Police Department of the State of Bihar and, accordingly, requested to Government of India vide letter dated 5.3.1986, to get the case investigated by the Central Bureau of Investigation (in short 'C.B.I.'), S.P.E. and, thereafter, several first information reports were lodged on 13.11.1986 and the same were forwarded to the Special Judge, South Bihar, C.B.I., Patna.
4. Petitioner Ram Harsh Das, as stated above, is facing prosecution in Crime No. R.C. 43/86. This was registered with allegation that one V.K. Joshi, while functioning as the Superintendent of Police, Ranchi, during the year 1983 to July, 1984, entered into a criminal conspiracy with several suppliers and committed several acts and omissions resulting into wrongful loss to the State Government and wrongful gain to the accused persons. It was stated that he made purchase of articles worth rupees 40,00,000/- dishonestly and fraudulently violating all the norms and instructions of the Bihar Police Manual, Rules of Bihar Finance Rules, instructions issued from the Police Headquarter from time to time. The purchases were beyond his financial and administrative competence. The articles, purchased by Mr. Joshi, were to be purchased by the Police Headquarter as they were of Centralised List, but the said articles were purchased by the Superintendent of Police, who had no authority to do so. The purchases were made from the suppliers, who were not approved by the Police Headquarter, at a higher rate than what was fixed by the Police Headquarter without inviting tenders. The articles purchased were sub-standard and poor in quality and Mr. Joshi fraudulently obtained allotment upto the tune of rupees 44 lacs by making false representation to the Police Headquarter.
5. Petitioner Ram Harsh Das at the relevant time was posted as A.I.G. (C) and he was not named in the first information report.
6. As stated above, petitioner Ajit Dutt is facing prosecution in R.C. Case No.45 of 1986 and at the relevant time, he was posted as the Superintendent of Police, Biharsharif at Nalanda from August 1981 to March 6, 1984. The allegation against him was that he purchased items of centralised list, which he was not authorised to purchase. The purchases were made at higher rate from non-approved contractors or non-existent contractors. The articles were purchased in excess and purchases were shown to have been made even with regard to the units, which were non-existent.
7. There is no dispute that after registration of the F.I.R. by the C.B.I. a so-called Association for Protection of Public Rights and Interests through Secretary filed a writ application being C.W.J.C. No. 7696 of 1989 in this High Court for quashing of the registration of the cases by the C.B.I., including the present two cases on the ground that unfounded allegations have been made out of malice and the allegations do not constitute offence against the persons concerned. The matter was heard by a Division Bench of this Court and by judgment dated 26.3.1990, a Division Bench quashed the prosecutions in all the cases so far as they related to the notified A.I.Gs. (B) of the Finance Wing and directed investigation to proceed against others, including the Purchase Wing of the headquarters, including the conduct of the A.I.G. (Q), with exception to those, who may have explanation of their conducts. The said judgment is reported in 1991 (1) PLJR page 201.
8. The Union of India filed a special leave petition (criminal) being 2380 of 1991. On 26.3.1991, the apex Court while issuing notice in the S.L.P. ordered the C.B.I. to continue investigation against A.I.G. (B), Finance Wing also. On 30.10.1991, the apex Court clarified the order dated 26.3.1991 and ordered that the investigation shall be carried out and completed in respect of the persons against whom the allegations had been made and necessary report be filed in the Court and the trial shall commence only after obtaining the leave of the Court. A copy of the order has been annexed as Annexure 2 to the application filed by petitioner Ram Harsh Das. Thereafter, it appears that the C.B.I. submitted the Police report before the apex Court on 5.1.96. The apex Court observed that the report should have been filed in the competent Court where the trial would take place and, accordingly, ordered that the report be filed there and then question of leave would be considered. A copy of the said order has been annexed as Annexure 3 to the said petition. Thereafter, the C.B.I, submitted a charge-sheet in ail the cases, including the cases in question on 29.3.96 in the Court of the Special Judge, Patna. So far as petitioner Ram Harsh Das is concerned, though he was not an accused in Crime R.C. Case No. 43 of 1986, but after investigation charge-sheet was also submitted against him. On 12.4.1996, the Special Judge, Patna, took cognizance in both the cases.
9. Petitioner Ram Harsh Das against the order taking cognizance filed the present application before this Court and the learned Single Judge of this Court by order dated 24.5.1996 dismissed the same on the ground that the matter was pending before the Supreme Court. Petitioner Ram Harsh Das filed an I.A. petition in the said S.L.P. being I.A. No. 7 of 1996 and the said S.L.P. was taken for final disposal on 30.7.1996, a copy of which is on the record. The apex Court having noticed that in pursuance of the order dated 30.10.1991, the C.B.I. has completed the investigation and filed the challan in the competent Court and the said Court has taken cognizance and issued process, quashed the judgment of a Division Bench of this Court dated 26.3.90 passed in aforesaid C.W.J.C. No. 7696 of 1989. The apex Court also set aside the order dated 24.5.1996 passed in Cr. Misc. No. 7878 of 1996 and directed this Court to decide the said application on merits.
10. Thereafter, the application filed by Ram Harsh Das was placed before a learned Single Judge, who admitted it on 26.3.1997. The petitioner Ajit Dutt filed the aforesaid application challenging the two orders as stated above.
11. Before proceeding to discuss the submissions advanced at the Bar, 1 would like to mention that the materials collected during the investigation show that the Police personnel of the rank of A.S.I., Head constables and constables were to be provided uniforms free of cost by the Director-cum-Inspector General of Police. Several norms were Lald down with regard to the allotment of funds, control over purchase and expenditure. These norms are contained in the Bihar Police Manual, Bihar Financial Rules and Instructions issued by the Government from time to time. The rules provided for issuance of a tender for purchase beyond Rs. 1000/-. It also provided prudent vigilance in respect of expenditure incurred from the Government revenue. It also put restrictions on the purchase of stores much in advance. Rule 1076 of Bihar Police Manual provided for the Constitution of the Committee to purchase materials for central stores for distribution to different districts and units as well as for direct purchase from approved contractors by local Superintendents of Police or Commandants. There was also a clause under the Police Manual for procurement of goods from the Government Department and Jails. The Director General-cum-Inspector General of Police had delegated his financial power to A.I.G. (B) and his powers in respect of purchase and supply to A.I.G. (Q). The concerned authority vide memo dated 11.12.1982 specified the items, which has to be purchased and distributed by the Police headquarter and items, which could be purchased directly by the Superintendents of Police and the Commandants. Those items were categorised in two lists i.e. List-I and List-Il. Items in Centralised list i.e. List-I were to be purchased by the Police Headquarter directly and distributed to different units and items in List-II (decentralised list) were to be purchased directly by the Superintendents of Police/Commandants for their districts and units from approved contractors at rates approved by the Police headquarter. With regard to List No. II, the names of the articles and approved contractors and rates were also specified in the list. A Quality Control Committee was also provided at unit level, which was to be constituted by the local Superintendents of Police and Commandants of their districts and units. The proceeding of the Committee was required to be recorded in a register maintained under the rules of the Bihar Police Manual. The Superintendents of Police Manual. The Superintendents of Police and the Commandants have no authority to purchase the items of List-I, They could purchase items specified in List-II from the approved Stores at approved rates and in case of a bulk purchase, they were required to send proposals to A.I.G. (B) for approval and release of fund.
12. Mr. Ganesh Prasad Singh, learned Senior Counsel appearing on behalf of the petitioners in both the cases submitted that even if the allegations made against the petitioners in both the cases are accepted on their face value, no prima facie case, as alleged against them, is made out and as such their prosecution is an abuse of the process of the Court. While elaborating his submission, he submitted that the foundations and the sheet-anchor of the prosecution against the accused in all the cases are that there were two Lists of articles. Items mentioned in Centralised List (List-I) were to be purchased by the Police headquarter, whereas the items mentioned in the decentralised list (List-II) were to be purchased from the district units. The allegation is that the purchases have been made by the Superintendents of Police of the district of the articles of Centralised list, which they were not authorised to do. The said allegation is falsified by order of the Director General of Police dated 18th of September, 1981 annexed as Annexure 7 to the petition filed by petitioner Ram Harsh Das, wherein a direction was issued to allow the Superintendents of Police to purchase the items of List-I i.e. Centralised list also. He also submitted that the audit reports of the relevant year falsify the allegation made against them. Regarding petitioner Ram Harsh Das, he submitted that at the relevant time, he was posted as A.I.G. (C) and the only allegation against him is that during the absence of A.I.G. (B) on 13.4.1986 and 14.4.1986, he passed an order for allotment of a huge amount of money by signing as A.I.G. (B) on the request for allotment made by O.T. Minz, Additional Superintendent of Police, Ranchi. This allegation by itself does not constitute any criminal offence. The petitioner Ram Harsh Das as a stop-gap arrangement has passed the order and as such his prosecution is wholly impermissible in law, specially when there is nothing on the record to show that he demanded illegal gratification or he has done any other act or that he conspired with suppliers and the local Police officials. He further submitted that in view of the order of the apex Court dated 30.10.1991, by which the apex Court directed that only the investigation would be carried out and completed in respect of the persons against whom the allegations had been made and trial should be commenced after obtaining the leave of the Court, the orders dated 12.4.96 in both the case taking cognizance are bad in law as the cognizance amounts to commencement of the trial, which was specifically prohibited by the apex Court.
13. Mr. Rakesh Kumar, learned Standing Counsel for the C.B.I., combated all the submissions and stated that this Court cannot be converted into a trial Court at this stage. The allegations and the materials collected during investigation, which have been mentioned briefly in the charge-sheet, show the hands of the petitioner in the crime in the sense that they conspired with other accused as a result of which bunglings were done resulting in wrongful loss to the Government and wrongful gain to the accused persons. The petitioners acted dishonestly and fraudulently, as a result of which a huge sum of Government money was misappropriated. He further submitted that the trial commences after the cognizance is taken and the accused person appears in the Court and steps are taken under Section 238 of the Code, which is applicable in a warrant case instituted on a Police report and as such the orders dated 12.4.1996 in both the cases taking cognizance, in no way, can be said to be contrary to the direction of the apex Court.
14. Before adverting to the respective submissions advanced at the Bar. I would like to mention at this stage the power of this Court to quash prosecution at the initial stage. In a criminal jurisprudence, the trial is a general rule and quashing the prosecution at the threshold is an exception. The power of quashing of the F.I.R., complaint, and order taking cognizance is to be exercised in the rarest of the rare cases only when the Court comes to the conclusion that the prosecution is an abuse of the process of the Court and continuance of the proceeding will result in miscarriage of justice. This Court, at the initial stage, cannot convert itself into a Court of trial or mini trial nor it can hold a trial before a regular trial commences in the original criminal Court. At this stage, the Court cannot look into the documents filed by the accused nor it can look into the affidavits filed on behalf of the accused with a view to controverting and falsifying the assertions made by the prosecution for the simple reason that if it allowed/permitted, then it will convert the quashing proceeding into a mini trial not conceived of by the legislature.
15. The Supreme Court in a catena of cases has Lald down criteria, guidelines and grounds for quashing the prosecution at the initial stage. In the case of State of Haryana v. Bhajan Lal, reported in : 1992CriLJ527 , the Apex Court, by way of illustration, categories the case where the Court should interfere at the initial stage for quashing the prosecution. It is apt to quote paragraph 108 of the judgment as follows:
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formula and to give an exhaustive list or myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose of cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR on complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act. (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In paragraph 109 of the said judgment, the Apex Court held that even if any of the grounds exists for quashing the prosecution, the power should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. The Court should be circumspect in quashing the prosecution and will not embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
16. In the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill, reported in : 1996CriLJ381 , the Apex Court reiterated the law Lald down in Bhajan Lal's case (supra) and said that at the stage of quashing of F.I.R. of the complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein.
17. In the case of Ganesh Narayan Hegde v. Section Bangrappa, reported in : 1995CriLJ2935 , the Supreme Court held that the High Court should interfere under Section 482 of the Code only when it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of the process of the Court or that the interest of justice otherwise call for quashing of the charges. The High Court cannot, at the stage of quashing, enter into arena of appreciation of evidence or record a finding that the prosecution was the result of political differences etc.
18. Recently in the case of State of H.P. v. Pirthi Chand, reported in : 1996CriLJ1354 , the Supreme Court held as follows:
12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is Lald, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weiqh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima-facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence--the Court may embark upon the consideration thereof and exercise the power.
Thus, the power of quashing is to be exercised in exceptional case to prevent miscarriage of justice on the well-settled grounds. However, at this stage, the Court cannot go into the question of reliability and genuiness of the allegation nor the Court can consider as to whether the evidence if accepted will result in conviction or not as that question is not at all germane to decide the question as to whether a prima-facie case is made out or not. The Apex Court has held by way of illustration that in the case where the allegations made in the F.I.R. and the complaint even if unrebutted do not make out a prima-facie case or cases, where the allegations and the materials collected during investigation or enquiry don't constitute an offence or where no cognizable offence is made out or where the prosecution is barred by any provision of Code or other enactments or where the allegations are absurd or inherently probable on the basis of which no prudent man could arrive at a conclusion that a prima-facie case is made out for proceeding or where the prosecution is actuated by mala fide or has been instituted maliciously or with ulterior motive for wreaking private vengeance, the prosecution should be quashed.
19. The case of the petitioners have to be considered after keeping the aforesaid guidelines in mind.
20. In case of petitioner Ram Harsh Das, no doubt, he was not named in the F.I.R., but the materials collected during investigation show that on two dates while he was made incharge to function as A.I.G. (B) by way of stop-gap arrangement and was to do only routine works, he passed order of allotment of huge sum of money on the request of O.T. Minz, Additional Superintendent of Police, Ranchi. While passing the order of allotment, he described himself as A.I.G. (B) when he was not A.I.G. (B). The allegation in this case is of conspiracy entered into by the high Police officials with the suppliers and in pursuance of that conspiracy, large number of articles of centralised list were purchased for which the Heads of the district units were not authorised. Even the articles of decentralised list were purchased by the Heads of the district units by violating all the norms and rules. As a result of irregularities, wrongful loss was caused to the Government and wrongful gain was caused to the accused persons. There is an allegation of conspiracy and his conduct in signing the allotment order as A.I.G. (B) in place of A.I.G. (C) when he was only required to do routine work, in the light of over materials collected during investigation, makes out a prima-facie case. It is to be stated that the conspiracy is committed in secrecy and direct evidence of the same is not easily available.
21. The question as to whether aforesaid conduct of petitioner Ram Harsh Das was a result of the conspiracy entered into with other accused or it was a bona fide act on his part has to be judged on the basis of the evidence collected during trial and not at this stage?
22. So far as the case of petitioner Ajit Dutt is concerned, the allegations against him have been investigated during investigation and it has been found that huge bungling has been committed by him. He purchased the articles, which were not required or he purchased articles of inferior quality or for non existent units or that he purchased the articles of the centralised list, which he was not authorised to do, and even for the purchase made by him of the articles of decentralised list, he did not follow the rules and regulations. The charge-sheet running into several pages shows the magnitude of the offences committed by petitioner Ajit Dutt. If the allegations and the materials collected during the investigation against him don't make out a prima-facie case as submitted by the learned Counsel for the petitioner, then I have to still find out a case, where a prima-facie case can be said to have been made out.
23. Learned Counsel for the petitioners in support of his submission relied upon the so-called letter of the Director General of Police (Annexure 7 to the petition of Ram Harsh Das), which has permitted the Heads of the district units to purchase even the articles of centralised list in certain situations. He also relied upon the audit report.
24. As I have already stated above, at this stage, the Court cannot look into the documents filed by the accused with a view to test the reliability or genuineness of the allegations. This Court will confine itself to the allegations and the materials collected during the investigation to find out whether a prima-facie case is made out or not.
25. In the case of State of Bihar v. P.P. Sharma, reported in 1991 (2) PLJR 11, a case under Sections 409, 420, 468, 471, 120B of the I.P.C. and 7 of the Essential Commodities Act was registered against P.P. Sharma, an I.A.S. Officer of this State and other persons. An application was filed for quashing the prosecution and a Division Bench of this Court quashed the prosecution after heavily relying upon the affidavits and the annexures filed along with the writ application. The matter went to the Apex Court and the Apex Court deprecated the practice of relying upon the annexures annexed with the writ application, which are neither part of the Police-reports nor were relied upon by the Investigating Officer. In paragraph 16 of the said judgment, it was stated as follows:
16. It is thus obvious that 'the annexures' were relied upon by the Investigation Officer. These documents were produced by the respondents before the High Court alongwith the writ petitions. By treating 'the annexures' and affidavits as evidence and by converting itself into a trial Court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal Courts.
Thus, the letter and the audit report, which have been annexed with the petition and relied upon by the petitioners, cannot be looked into as that will amount to usurping the function of the trial Court.
26. The other submission, advanced on behalf of the petitioners that the orders taking cognizance dated 12.4.1996 are contrary to the direction of the Apex Court, is, in my view, without substance and the same has been made for the sake of submission only. There are two grounds to reject the aforesaid submission. The Apex Court on 30.7.1996 while finally disposing the S.L.P. noticed that the C.B.I. has completed the investigation and filed the challan in the competent Court and the Court has taken cognizance and issued processes against the accused persons, set aside the order of this Court, by which the prosecution regarding Finance Wing of the Police Department was quashed. The Apex Court did not say that the orders taking cognizance are bad in view of its earlier order dated 30.10.1991 and as such this question cannot be agitated by the learned Counsel for the petitioners at this stage. Secondly, the orders taking cognizance cannot be said to be a commencement of the trial. The word 'cognizance' has not been defined under the Code, but it means taking notice of the offence. In a warrant case instituted on a Police report and triable by a Magistrate, which is applicable in the present cases, the trial commences after a notice is issued to the accused for their appearance and once they appear or are produced, the Police papers are supplied to them as provided under Section 238 of the Code. Section 238 of the Code provides that when, in any warrant case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. This provision was interpreted by the Apex Court in the case of V.C. Shukla v. State of Bihar, reported in : 1980CriLJ690 and a Bench of five Judges held that in a warrant case instituted on a police report, the trial commences at the stage of Section 238 of the Code.
27. However, learned Counsel for the petitioners, in support of his submission, relied upon the decision of the Apex Court in the case of Union of India v. Madan Lal Yadav, reported in : [1996]3SCR785 , wherein while dealing with the provision of Section 123 of the Army Act, the Apex Court held that the trial commences the moment General Court Martial (GCM) assembles to consider the charge and examine whether they would proceed with the trial or not. Dealing with the aforesaid matter at one place, an analogy has been drawn from the provision of the Code and in paragraph 27, it was held that under the Code, the trial commences the moment cognizance of the offence is taken and process is issued to the accused for his appearance.
28. In my view, in the said case, the Apex Court was considering the provisions of the Army Act and after considering the relevant provision, it held as aforesaid and while dealing with the said matter, the aforesaid observation has been made. But as stated above, a larger Bench of five Judges has held that the trial in a warrant case to be tried by a Magistrate commences from the stage of Section 233 of the Code. Thus, in my view, it cannot be said that at the stage of taking cognizance, when the accused is not present and there is no compliance of the provision of Section 238 of the Code, the trial has commenced. Thus, this submission of the learned Counsel for the petitioners also fails.
29. Thus, no case for quashing of the prosecution of both the petitioners is made out.
30. In Cr. Misc. No. 13551 of 1996, the petitioner has challenged the order, by which his prayer to dispense with the personal appearance under Section 205 of the Code has been rejected. The learned Single Judge having noticed two conflicting judgments of this Court on this point, has referred the matter to a Division Bench. He noticed that the judgment rendered in the case of D.K. Jhaver and Ors. v. State of Bihar and Ors. reported in 1996 BLJ 200, taking the view that even in the cases where warrants have been issued, personal appearance can be dispensed with, is contrary to the earlier Single Judge judgment of this Court in the case of Subba Rao v. The King, reported in : AIR1951Pat405 , wherein it has been held that Section 205 of the Code applies to cases where summonses have been issued in the first instance.
31. Learned Counsel for the petitioner submitted that the power to dispense with the personal appearance can be exercised not only in the cases, in which the Magistrate hits issued summons, but also in cases where warrants have been issued. The issuance of warrant by the Magistrate does not divest the Magistrate of his power to dispense with the personal appearance. Elaborating his submission, he contended that the Court has to find out the real intention of the legislature and when the legislature has vested power to the Magistrate to dispense with the personal appearance, then the benefit of the same is to be given to the accused even in the cases, where warrants have been issued.
32. In support of his submission, the learned senior Counsel for the petitioner--Ajit Dutt relied upon certain cases, which are detailed hereinafter:
(i) Chandrawati Devi v. State of Bihar 1983 PLJR 209.
(ii) Raghunath Das v. Hari Mohan Pandey 1988 CrLJ 1573.
(iii) Ajit Kumar Chakraworty v. Srirampur Municipality 1991 (3) CrLJ 3219.
(iv) Viuek Bhargava v. State of Bihar 1995 (1) PLJR 665.
(v) D.K. Jhaver v. State of Bihar 1996 BLJ 200.
33. Learned Counsel appearing on behalf of the opposite party C.B.I., on the other hand, contended that, the conjoint reading of Sections 204 and 205 of the Code makes it clear that in the cases, where summons has to be issued at the first instance, the Magistrate may dispense with the personal appearance. In warrant case, the power to dispense with the personal appearance can be exercised only when a summons has been issued by the Magistrate at the time of issuance of processes, but once warrant has been issued, the Magistrate has no power to dispense with the personal appearance under Section 205 of the Code.
34. The general rule is that the trial should be held in presence of the accused. Holding of trial in absence of the accused is a nullity unless his appearance is dispensed with either by express or implied provision of the Code. The requirement of presence of the accused during trial is based on the principle that no body should be condemned unheard. In other words, it embodied the principle of natural justice--audi alteram partem. The Court, however, has made specific provision for dispensing with the personal appearance of the accused at different stages of the proceeding. At the initial stage, when a process is issued, the Code empowers the Magistrate to dispense with the personal appearance in certain circumstance as is evident from Section 205 of the Code. During enquiry and trial under Section 317 of the Code, the Court can dispense with the personal appearance for the ends of justice or when the accused persistently disturbs the proceeding of the Court. This apart, there are several provisions of the Code, which are not to be dealt with here, which provided that the evidence can be recorded in absence of the accused or the report of certain persons may be admitted into evidence even when the reports is not prepared in presence of the accused. Reference in this connection may be made to the provisions of Sections 291, 292 and 391 of the Code.
35. The relevant provisions, which are subject-matter of consideration in this case, are Sections 204 and 205 of the Code and it is apt to quote them to appreciate the points raised on behalf of the parties:
204. Issue of process.--(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, it he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provision of Section 87.
205. Magistrate may dispense with 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.
(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.
36. A bar perusal of the aforesaid provisions makes it clear that if the Magistrate taking cognizance is of the opinion that there is sufficient ground for proceeding, then he can issue summons or warrant, as the case may be. This function of the Magistrate is a judicial function and once he comes to the conclusion that there is sufficient ground for proceeding against the accused, then the law requires that in summons cases, he has to issue summons for the attendance of the accused or in warrant case, he may issue a warrant or if he thinks that at first instance, instead of warrant, he should issue a summons, then he should issue summons for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with the personal appearance in a case where he has issued summons. The summons and warrant-cases have been defined under Sections 2(w) and 2(x) of the Code. Summons-case means a case relating to an offence and not being a warrant case, whereas, warrant-case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
37. The object and reasons for incorporating the provisions of Section 204(1) (a) & (b) in the Code of 1973 have been published in the Gazette of India dated 10.12.1970, Part II, Section 2, Extra, P. 1309 (1319). The same are quoted hereunder:
Clauses 209 & 210, Sections 204-205.--These correspond to Sections 204 and 205. In the present law to ascertain where a summons or a warrant should issue in the first instance for securing attendance of the accused it is necessary to refer to the entries in the relevant columns of the Second Schedule which are not based on any principle. The classification adopted in this regard in the said Schedule is not the same as for between a summons case and a warrant case, because summons may issue in a warrant case and a warrant may issue in a summons case. It is considered that there is no need to have these complicated arrangements; a simpler provision is being made whereby summons will issue in all summons-cases and warrant in all warrant cases except when the Magistrate orders otherwise.
From a reading of Section 204, together with the object and reasons, it is clear that a summons has to be issued in all summons-cases and warranted in all warrant-cases, except where the Magistrate orders to issue summons as provided under Section 204(1)(b) of the Code. In other words, issuance of warrant in a warrant-case is a rule and issuance of summons is exception, which is to be made by the Magistrate if there is reason or ground to do so. Section 205 of the Code does not speak of summons and warrant cases, rather it speaks 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. Thus, from a bare reading of both the provisions, it is clear that the Magistrate can exercise a power under Section 205 of the Code even in warrant-cases also, provided he has issued summons under Section 205(1) of the Code instead of warrant. Legislature never intended that power to dispense with personal appearance cannot be exercised in a warrant case. However, a rider has been put that this power has to be exercised only when the Magistrate on being satisfied that the summons should be issued instead of a warrant, issues summons.
38. However, the question of controversy in this case is as to whether in warrant cases, where warrant has been issued, the power under Section 205 of the Code can be exercised by the Magistrate or not. From the perusal of the object and the reasons for incorporating Section 205 of the Code, it appears that it was never intended that this provision is to be used to dispense with the appearance of the accused facing prosecution in serious cases, major offences or offences involving moral turpitude and an offence punishable with a sentence of long imprisonment.
39. Firstly, I will deal with the cases relied upon by the petitioner in support of his submissions.
40. In the case of Chandrawati Devi (supra), it appears that a learned Single Judge of this Court ordered to dispense with the personal appearance in a case, which was a summons case and not in a warrant case and as such the said case is of no help in deciding the matter in controversy.
41. In Raghunath Das's case (supra), a learned Single Judge of the Allahabad High Court ordered to dispense with the personal appearance of some of the accused in the facts of that case. From the perusal of the judgment, it appears that the case was a summons-case as the accused were facing prosecution under Sections 323 and 506 of the I.P.C.
42. The case of Ajit Kumar Chakraworty (supra) is also of no help to the petitioner because in that case, summons was issued and not a warrant for appearance of the accused. This part, the point involved in the said case was different one, namely, as to whether the appearance of the accused was necessary before consideration of the application under Section 205 of the Code.
43. In the case of Vivek Bhargava (supra), it appears that the petitioners in the said case were facing prosecution in a warrant case and the prayer was rejected by the Magistrate and a learned Single Judge of this Court allowed the application under Section 205 of the Code. The question whether the personal appearance is to be dispensed with or not in warrant case where warrant has been issued has not been decided at all. As such, the said case is also not an authority on the point involved in this case.
44. In D.K. Jhaver's case (supra), which is a judgment by a learned Single Judge of this Court, it appears that the cognizance was taken under Sections 420/34 of the Indian Penal Code, which is a warrant-case. Perusal of paragraph No. 3 of the judgment of the said case shows that the summons was issued at first instance and as such in that context, the application under Section 205 of the Code was allowed. While delating with the said matter, at one place, the learned Judge had said that there is nothing in Section 205 to show that the exemption from personal appearance cannot be considered merely because a warrant of arrest has been issued against the accused. The said observation was made without any discussion, and as such the same also cannot be said to be a decision on the point.
45. Apart from the aforesaid cases relied upon by the petitioner, a Division Bench of the Allahabad High Court in the cases of Aditya Prasad Bagchi v. Jogendra Nath Maitra, reported in AIR 1948 Alld. 393, has held that 'there seems to be no reason why this section should be read as debarring a Court from considering the request of an accused to appear by a Pleader merely because a warrant had been issued in the first instance.' It has been further held that '205 only applies to the stage where a Magistrate is considering the issue of summons or warrant for the appearance of an accused person and no further.
46. The question as to whether the personal appearance can be dispensed with in a case where warrant has been issued for appearance at the first instance or not, was first considered by a Division Bench of this Court in the case of Abdul Hamid v. King Emperor, reported in AIR 1924 Patna 40, and it was held that Section 205 applies only to a case, in which the Magistrate has issued a summons in first instance and it does not apply to a case where the accused has been arrested without or after the issuance of warrant. This view has been followed by a learned Single Judge of this Court in the case of Subba Rao (supra), wherein it was held that Section 205 applies only to a case where summons and not warrant is issued in the first instance.
Similar view has been expressed by other High Courts. Reference in this connection may be made to the decisions rendered in the case of Lakhram Agrawalla v. Pannalal Agrawalla AIR 1951 Assam page 129, in the case of Emperor v. Sardar AIR 1917 Lahore 292, in the case of Mt. Sarji v. Mt. Bhimi AIR 1930 Nagpur 61, and in the case of Ummal Hasanath AIR 1947 Madras 433.
47. Apart from the facts that the law Lald down by the Division Bench of this Court is binding on me, I am in full agreement with the view expressed in the aforesaid Division Bench case and other cases referred to above, wherein a view has been taken that in a case, where a warrant has been issued at the first instance, the power under Section 205 of the Code cannot be exercised. The legislature in clear words has said that the power under Section 205 of the Code is to be exercised only in cases where summons have been issued and as such this Court cannot legislate and say that the power can also be exercised in the cases where a. warrant has been issued at the first instance.
48. Thus, I am of the considered view that once the Magistrate has issued a warrant at the first instance in a warrant case, the power under Section 205 of the Code cannot be exercised. However, I may state that even in such cases, this Court may dispense with the personal appearance in exercise of power under Section 482 of the Code if a proper case is made out for ends of justice. However, such cases shall be far and few. Though the point in contrary was not specifically decided in Jhaver's case (supra), the observation made by the learned Single Judge of this Court in that case is contrary to the judgment of the Division Bench of this Court and is not a good law.
49. The power referred to in Section 205(1) of the Code is discretionary. Even in cases, where the provision is applicable, the Magistrate has to consider the question of dispensing with the personal appearance in reasonable manner. No hard and fast rule can be Lald down for deciding the question of grant or refusal of the prayer for dispensing with the personal appearance. In petty cases, the Court should be liberal in granting exemption from personal appearance, but will not exercise such power in the cases of serious nature including the offence involving moral turpitude. The Court has to consider the nature of the allegations, conduct of the accused and the inconvenience likely to be caused to the accused due to his appearance in the Court and after relevant consideration at the time of deciding the question of dispensing with the personal appearance. No categorisation of cases where the power is to be exercised under Section 205 of the Code can be made but generally, Pardanashin women, old and sick persons, factory workers and labourers, busy business people or public functionaries are to be given the benefit of the said provision unless, as stated above, they are facing prosecution in serious offences like murder, rape, misappropriation of money, harassment to women etc.
50. Coming to the facts of this case, the prayer made by the petitioner-Ajit Dutt cannot be allowed on two grounds. The first hurdle in the way of the petitioner is that a warrant has been issued. The second hurdle in the way of the petitioner is that he is an accused in a very serious case because being a public servant he is alleged to have misappropriated public money and as such the learned Magistrate was fully justified in rejecting his prayer for dispensing with his personal appearance.
51. Before parting with these cases, I may mention that in this State criminal proceedings move in slow motion. In case of rich, influential person, high officials and politicians, the movement of the cases is at much slower motion. Efforts are made to finish the case at the threshold. After the registration of the cases, attempts are made to stall the progress of the case at every stages and the resultant effect is that the trial is delayed. There is a general impression that criminal case comes to end after the grant of bail because thereafter every order passed in criminal cases is challenged before the superior courts. Delay in holding the trial has a telling effect. The witnesses are either gained over or they are reluctant to come to Court due to lapse of time. Even the prosecution loses much interest due to lapse of time. The present case is the best example of the delaying tactics adopted by the accused to delay the disposal of the case. In this connection I am tempted to quote the observation of the Apex Court in the case of Ganesh Narayan Hegde (supra).
The slow motion becomes much slower motion when politically powerful or rich and influential persons figure as accused. F.I.Rs. are quashed. Charges are quashed. Interlocutory orders are interfered with. At every step, there will be revisions and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all these interruptions, the time would have taken its own toll; the witnesses are won over; evidence dis-appears; the prosecution loses interest the result is an all too familiar one. We are sad to say that repeated admonitions of this Court have not deterred superior courts from interfering at initial or interlocutory stages of criminal cases. Such interference should be only in exceptional cases where the interests of justice demand it, it cannot be a matter of course. In the circumstances, we cannot accede to the said contention.
52. The case in question is of the year 1986 and as such it requires to be disposed of at an early date and, accordingly, the Special Judge is directed to dispose of these cases at the earliest.
53. In the result, both these applications are dismissed with observation/direction aforementioned.
B.P. Sharma, J.
I agree.