Sheela Kumar & Ors vs State Of Bihar Thru. Vigilance on 20 March, 2009
| Citation | CR. REV. No.1539 of 2008 |
| Date of Judgment | 20 March 2009 |
| Court | Patna High court |
| Case Type | Criminal |
| Appellant | 1.Sheela Kumar wife of Arvind Prasad, posted at the office of Dy.Labour Commissioner, |
| Respondent | State Of Bihar Through Vigilance |
| Bench | Leaned Special Judge, Vigilance, Patna |
| Referred | Section- 205,204. |
FACTS OF THE CASE
The prosecution case in short is that a limited competitive examination of Government employees for appointment/promotion to the post of Bihar Administrative service, Class II was conducted by the Bihar State Public Service Commission (BPSC). The examination has been termed as First limited competitive examination. Only government employees in Class III who had put in a given number of years in service were eligible to appear in this examination. It is alleged that a large number of candidates got themselves declared successful by adopting unfair and dubious means with tacit connivance of the officials of the Commission and others. In para 10 of the counter affidavit gross manipulations and embezzlements including breaking locks of the strong room of Commission and erosion in answer books have been alleged by the prosecution. A copy of the FIR has been annexed as annexure 1 to the writ petition.
Petitioners submit that they are not named in the FIR. They vehemently deny the allegations leveled against them in the prosecution case. They controvert allegation of
connivance with the Chairman and staff of the Commissions. They further contend that even if allegations are taken at their face value, they could be charged maximum under the Examination Act. They allege that the Vigilance Investigation Bureau without any sufficient materials got a warrant of arrest against them on defective requisitions even though investigation was pending. Petitioner filed Cr.W.J.C. No. 380 of 2006 in this court. This court after hearing the parties stayed a warrant of arrest against them till filing of the charge sheet. The Vigilance after investigation filed nine charge sheets against a total number of 109 accused persons including 97 successful candidates inclusive of petitioners.
Consequent to filing of charge sheets, the learned Special Judge, Vigilance on 2.1.2008 took cognizance of the offence and summoned the petitioners to face trial, vide order dated 15.1.2008.
ISSUES
Whether an accused can claim exemption under section 205 Cr.P.C. pursuant to issuance of summons in a warrant case under section 204(1)(b) if warrant of arrest has been issued against him in course of investigation purportedly under section 73 Cr.P.C?
ARGUMENTS
The adjudication of the issues necessarily involves the consideration and determination of scope of sections 73, 204 and 205 Cr.P.C. The provisions are quoted herein below for easy reference:
“Section 73. Warrant may be directed to any person-(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.” “Section 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, if 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”.
“205.Magistrate may dispense with personal attendance of accused-(1) Whenever a Magistrate issues a summons, he may, if he sees reason to do so, 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”.
The scope and object of sections 204 and 205 Cr.P.C. was subject of consideration before a Division Bench of this court way back in early 1920s in the case of Abdul Hamid Vs King Emperor, reported in 1924 Patna 40. In recent years the aforesaid provisions have also been subject matter of consideration of a Division Bench of this court in the case of Ram Harsh Das Vs State of Bihar, 1998(1) P.L.J.R. 504. Relying upon the earlier decision in the case of Abdul Hamid Vs. King Emperor,
reported in 1924 Patna 40, the latter Division Bench in case of Ram Harsh Das (supra) held that if a Magistrate taking cognizance of offence finds sufficient ground for proceeding, he would necessarily issue summons in summons cases, and warrant in warrant case save and except if Magistrate otherwise finds it fit to issue summons. It necessarily follows from conjoint reading of sections 204 and 205 Cr.P.C., that the issuance of warrant in a warrant case is a rule and issuance of summons is an exception. Furthermore, section 205 empowers a Magistrate to dispense with personal attendance of an accused when summons is issued. Section 205(1) Cr.P.C. does not refer either to summons case or warrant case rather it speaks that in case summons is issued, the Magistrate if he sees reason to do so, may dispense with personal attendance. He can exercise this judicial discretion at any stage of the proceeding before the termination of the trial as provided under section 205(2) Cr.P.C.
Section 205 Cr.P.C. somewhat corresponds to section 540 A of Old Cr.P.C. which was inserted in the Code in the year 1923 by Amendment Act 18 of 1923. Even prior to such amendment the court exercised the power of exemption in appropriate cases under sections 353 of the Old Code. The provision under section 205 Cr.P.C. is a benevolent measure with avowed object to protect an accused from harassment and inconvenience. Hence, the legislature has conferred the discretionary power of dispensing with personal appearance/attendance of the accused and permitting him to appear through his Pleader. The discretion is not imperial but judicious and reasonable. The satisfaction has to be judicious and not arbitrary or imbued with instinctual reaction. Besides section 205 Cr.P.C., the power of exemption can be exercised under sections 273, 317 and 482 Cr.P.C.
JUDGEMENT
In view of the aforesaid circumstances, Justice held that the petition filed by the petitioners under section 205(1) Cr.P.C. cannot be rejected solely on the ground that warrants were issued to them prior to the commencement of proceeding under section 204 Cr.P.C. Justice further held that the order passed under section 205(1) Cr.P.C. is not an interlocutory order within the meaning of section 397(2) of Cr.P.C. However, taking into consideration the totality of circumstances and nature of allegations, Justice did not find the instant case to be a fit case in which exemption under section 205(1) Cr.P.C. could be allowed .
REFERENCES
This Article is written by Kiran Bosiya and of Rajasthan school of law for women, Intern at Legal Vidhiya.
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