Gyanesh Kumar and Others Vs. State of U.P. and anr. - Court Judgment

Excerpt:
[r.v. raveendran; a. k. patnaik] indian penal code section 452 - house-trespass after preparation for hurt, assault or wrongful restraint -- after investigation, the police filed two challans on 02.02.2006 before the judicial magistrate, first class, ludhiana. after further investigation, the superintendent of police, city-ii, ludhiana, submitted his report to the deputy inspector general of police, ludhiana range. the relevant portion of the report of the superintendent of police, city-ii, ludhiana, which contains his conclusions after further investigation, is extracted herein below: "i found during my investigation that mohan singh, son of shri sher singh , dharmatma singh, harpal singh, jagdev singh and bhupinder singh, sons of mohan singh, residents of pullanwal, sold one plot of 1 kanal 13 marlas on 09.03.2004 to bharpur sigh, harnek singh, sons of balbir singh, jagjit singh, son of amarjit singh, gurcharan singh, son of hari dass and jagdev singh, son of harpal singh, resident of phulanawal through registered sale deed vasikha no.23895 and the mutation no.10940 duly entered in the name of purchasing party. for deciding the issue, we must first refer to the provisions of section 173 of the cr.p.c. under which the police submits reports after investigation and after further investigation, section 190 of the cr. p.c. under which the magistrate takes cognizance of an offence upon a police report and section 482 of the cr.p.c. under which the high court exercises its powers to quash the criminal proceedings. report of police officer on completion of investigation. cognizance of offences by magistrate. sub-section (8) of section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the magistrate a further report regarding such evidence and the provisions of sub-section (2) of section 173, cr.p.c., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). thus, the report under sub-section (2) of section 173 after the initial investigation as well as the further report under sub-section (8) of section 173 after further investigation constitute "police report" and have to be forwarded to the magistrate empowered to take cognizance of the offence. r.p. kapur moved the punjab high court under section 561-a of the code of criminal procedure for quashing the proceedings initiated by the first information report. 1. this is a transfer application under section 407 of the code of criminal procedure (in short "the code") for transfer of case nos.197 of 2006 (state v gyanesh kumar & others), under sections 498-a and 323 ipc and of the dowry prohibition act and 527 of 2007 (smt. santosh kumari & others v gyanesh kumar) under section 125 of the code of criminal procedure pending in the court of the learned additional civil judge (junior division), court no. 2, etah to the court of hathras or aligarh.2. heard learned counsel for the applicants and the learned aga for the state and perused the record.3. the learned counsel for the applicants submitted that applicant are the residents of nazafbgarh delhi and are required to attend on each day in the court of the judicial magistrate/additional civil judge, (junior division), court no. 2, etah. it is highly inconvenient for all the family members of the applicant to go to attend the court on every date, therefore, the case may be transferred to hathras or aligarh.4. in such matters convenience of both the parties are to be considered, therefore, the transfer of the aforesaid cases from etah to other district may cause inconvenience to respondent no. 2, therefore the transfer of the cases is not possible if the applicants have any difficulty inappearing personally before the court concerned, it is open to them to move appropriate application under section 205 of the code for exemption from their personal attendances in the court.4. the learned counsel for the applicants lastly submitted that some directions for considering the prayer of the applicants under section 205 of the code may be issued to the learned trial court instead of transferring the aforesaid cases and this will serve the purpose behind the presentation of this transfer application.5. section 205 of the code empowers a magistrate to dispense with personal attendance of the accused in certain circumstances. section 205 of the code reads as follows: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.in the case of bhaskar industries ltd v. bhiwani denim and apparels ltd.[ (2001) 7 scc 401, the apex court has propounded the principles regarding the ambit and scope of section 205 of the code. paragraph 19 of the judgement seems to be relevant, which is as follows: 19.......it is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accusedeither 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.the aforesaid principles have been followed with approval in the subsequent case of tgn kumar v state of kerala, (2011) 2 scc 772. paragraphs 8 & 10 of the judgement rendered in tgn kumar (supra) case seem to be relevant, which are reproduced as follows: ...8. the section confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. it is manifest from a plain reading of the provision that while considering an application under section 205 of the code, the magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. he shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (see: s.v. muzumdar & ors. v. gujarat statefertilizer co. ltd. & anr.7) . therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else. .........10.we respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. the court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial...6. therefore, the magistrate while considering an application under section 205 of the code, has to see whether or not any useful purpose would be served by requiring the personal attendance of the accused in the court. he is further required to see whether or not the progress of the trial is likely to be hampered on account of absence of the accused. as held in the case of bhaskar industries (supra), the discretion under section 205 of the code should be exercised in a judicious manner and the personal presence of the accused should be required only when the trial cannot proceed further without the presence of the accused. if the trial can be held conveniently in absence of the accused, it would be just and expedient to exercise the discretion in favour of the accused and dispense with his personalattendance in the court.7. in view of the aforesaid, it will be open to the applicants to move an application under section 205 of the code in case no.197 of 2006 (state v gyanesh kumar & others), under sections 498-a and 323 ipc and of the dowry prohibition act for dispensing with their personal attendance in the court. if any such application is moved, the same may be considered and disposed of in accordance with the observations made herein before.8. however, i do not consider it proper to transfer the aforesaid case.9. with the aforesaid observations, the transfer application is dismissed.

Judgment:
1. This is a transfer application under section 407 of the Code of Criminal Procedure (in short "the Code") for transfer of Case Nos.197 of 2006 (State v Gyanesh Kumar & others), under sections 498-A and 323 IPC and of the Dowry Prohibition Act and 527 of 2007 (Smt. Santosh Kumari & others v Gyanesh Kumar) under section 125 of the Code of Criminal Procedure pending in the court of the learned Additional Civil Judge (Junior Division), Court No. 2, Etah to the court of Hathras or Aligarh.

2. Heard learned counsel for the applicants and the learned AGA for the State and perused the record.

3. The learned counsel for the applicants submitted that applicant are the residents of Nazafbgarh Delhi and are required to attend on each day in the court of the Judicial Magistrate/Additional Civil Judge, (Junior Division), Court No. 2, Etah. It is highly inconvenient for all the family members of the applicant to go to attend the court on every date, therefore, the case may be transferred to Hathras or Aligarh.

4. In such matters convenience of both the parties are to be considered, therefore, the transfer of the aforesaid cases from Etah to other district may cause inconvenience to respondent no. 2, therefore the transfer of the cases is not possible If the applicants have any difficulty inappearing personally before the court concerned, it is open to them to move appropriate application under section 205 of the Code for exemption from their personal attendances in the court.

4. The learned counsel for the applicants lastly submitted that some directions for considering the prayer of the applicants under section 205 of the Code may be issued to the learned trial court instead of transferring the aforesaid cases and this will serve the purpose behind the presentation of this transfer application.

5. Section 205 of the Code empowers a Magistrate to dispense with personal attendance of the accused in certain circumstances. Section 205 of the Code reads as follows:

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.

In the case of Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd.[ (2001) 7 SCC 401, the Apex Court has propounded the principles regarding the ambit and scope of section 205 of the Code. Paragraph 19 of the judgement seems to be relevant, which is as follows:

19.......It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accusedeither 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.

The aforesaid principles have been followed with approval in the subsequent case of TGN Kumar v State of Kerala, (2011) 2 SCC 772. Paragraphs 8 & 10 of the judgement rendered in TGN Kumar (supra) case seem to be relevant, which are reproduced as follows: ...

8. The Section confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See: S.V. Muzumdar & Ors. v. Gujarat StateFertilizer Co. Ltd. & Anr.7) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.

.........

10.We respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial...

6. Therefore, the Magistrate while considering an application under section 205 of the Code, has to see whether or not any useful purpose would be served by requiring the personal attendance of the accused in the court. He is further required to see whether or not the progress of the trial is likely to be hampered on account of absence of the accused. As held in the case of Bhaskar Industries (supra), the discretion under section 205 of the Code should be exercised in a judicious manner and the personal presence of the accused should be required only when the trial cannot proceed further without the presence of the accused. If the trial can be held conveniently in absence of the accused, it would be just and expedient to exercise the discretion in favour of the accused and dispense with his personalattendance in the court.

7. In view of the aforesaid, it will be open to the applicants to move an application under section 205 of the Code in Case No.197 of 2006 (State v Gyanesh Kumar & others), under sections 498-A and 323 IPC and of the Dowry Prohibition Act for dispensing with their personal attendance in the court. If any such application is moved, the same may be considered and disposed of in accordance with the observations made herein before.

8. However, I do not consider it proper to transfer the aforesaid case.

9. With the aforesaid observations, the transfer application is dismissed.