SRI RAMESHWAR YADAV & ORS. versus THE STATE OF BIHAR & ANR.

Citation: [2018] 4 S.C.R. 1055 · Decided: 16-03-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1055
SRI RAMESHWAR YADAV & ORS.
v.
THE STATE OF BIHAR & ANR.
(Criminal Appeal No. 387 of 2018)
MARCH 16, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Code of Criminal Procedure, 1973 – ss. 205 and 482 –
Second respondent filed complaint against her husband and the
accused-appellants (parents-in-law and two others) u/s. 498A IPC
and s.4 of the Dowry Prohibition Act – Magistrate summoned the
accused-appellants as well as the husband of the complainant-
second respondent – Accused-appellants filed application to
dispense with their physical appearance in the case – Application
rejected by the Magistrate u/s. 205 – Order of the Magistrate
challenged u/s.482 before the High Court, which was dismissed –
On appeal, held: The observation of the High Court that the
accused-appellants have filed application u/s. 205 at a subsequent
stage after appearing before the Court is factually incorrect –
Application u/s. 205 was filed by the accused-appellants prior to
the appearance in the Court – The grant of exemption from personal
appearance in the Court on each and every date was required to be
considered in view of the fact that application was filed much before
their appearance in the Court – Further, Magistrate had not rejected
the application on the ground that application is not entertainable
after appearance of the accused-appellants before the Court – The
views of the High Court for rejecting the application were unfounded
– On the other hand Magistrate also, while rejecting the application,
failed to consider the actual grounds given by the accused-
appellants for seeking exemption – In application the grounds were
that appellant no.1, father of complainant’s husband, appellant no.2
(wife of appellant no. 1), appellant no.3 and 4 were residing at
Pune – The distance between residence of the accused-appellants
and the place of trial at Patna is 1750 kms – Taking into
consideration the entire facts and circumstances and the grounds
taken by the appellants in their application u/s. 205 and s.482,
sufficient grounds were made out for granting exemption from
[2018] 4 S.C.R. 1055
1055
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1056
SUPREME COURT REPORTS
[2018] 4 S.C.R.
personal appearance of the accused-appellants in the trial – Penal
Code, 1860 – s. 498-A – Dowry Prohibition Act, 1961 – s.4.
Allowing the appeal, the Court
HELD: 1. The observation of the High Court that the
accused has filed application under Section 205 Cr.P.C. at a
subsequent stage after appearing before the court is factually
incorrect. The application was filed by the accused under Section
205 Cr.P.C. on 17.01.2013. Thus, the application under Section
205Cr.P.C. was filed prior to the appearance in the court and the
same would have very well been considered by the Magistrate
despite their appearance in the court after obtaining the pre-arrest
bail. The grant of exemption from personal appearance in the
court on each and every date was required to be considered in
view of the fact that application was filed on 17.01.2013 much
before their appearance in the court. Further, the Magistrate had
not rejected the application on the ground that application is not
entertainable after appearance of the accused before the court.
Thus, the aforesaid ground given by the High Court for rejecting
the application is unfounded. [Para 10]  [1060-H; 1061-A-C]
2. There is one more reason due to which the High Court’s
order cannot be sustained. The High Court in its order observed
that there is another provision that is Section 317 Cr.P.C. which
gives discretion to the court to exempt a person from personal
appearance. The High Court observed that the remedy available
to the accused was under Section 317 Cr.P.C. and not
under Section 205 Cr.P.C. Section 317 Cr.P.C. empowers the
Magistrate, at any stage of inquiry or trial for reasons to be
recorded to exempt attendance of the accused. There is no
impediment in the power of the Magistrate to consider the
application of accused for their exemption from personal
appearance.  [Paras 10, 11]  [1061-C-E]
3. Now, adverting to the reasons given by the Magistrate
for rejecting the application. First reason given by the Magistrate
is that all the accused appear hale and hearty and there is no
suffering from any type of disease which may be impediment in
appearing before the court. Application was not filed by the
accused on the ground that they suffer from any physical illness
and hence the said reason given by the Magistrate is wholly out
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