IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.3170 of 2009 VIJAY NATH JHA, SON OF SRI BRAHMA KUMAR JHA, RESIDENT OF GRASIM INDUSTRIES LTD. CEMENT DIVISION CONSTAMTIA 7TH FLOOR, 11, DR. U.N. BRAHMACHARI STREET KOLKATA – 700017. ................ PETITIONER. Versus 1. THE STATE OF BIHAR. 2. VIJAY KUMAR, SON OF SHRI SIDHESHWAR PRASAD, RESIDENT OF FLAT NO. G/37, P.C. COLONY, P.O. LOHIYA NAGAR KANKARBAGH, PATNA -20. ……….. Opp. Parties. ----------- For the Petitioner :- Mr. Sanjeev Ranjan, Advocate. For the Opp. Party :- Mr. Vinod Bihari Ranjan, Advocate. Mr. Jagdish Prasad No. 1, Advocate. For the State :- Mr. Damodar Prasad Tiwary, A.P.P. ----------- 05/ 29.11.2010 Heard. 2. This application has been filed against the order dated 17.11.2008 passed by Judicial Magistrate Ist Class, Patna in Complaint Case No. 2319(c) /02 by which the petition under Section 205 of the Cr.P.C for dispensing with the personal appearance of the petitioner has been refused. 3. From perusal of the records it appears that a criminal case was filed for offence under Sections 403, 406, 420 and 34 of the Indian Penal Code alleging therein that the blank cheque given by the prosecution, being a dealer of company to the accused persons were for the 2 purpose of security and it is alleged that the said cheque given in security was encashed by the company. The petitioner is alleged to be the Assistant Marketing Officer of the Grasim Industries Limited with his office at Kolkata and cognizance was taken on 24.04.2003 and a summon was ordered to be issued. However, it is alleged that the summon was not served and consequently without service of summon, warrant of arrest and even the process has been issued. However, the petitioner for the first time learnt about the pendency of the case in 2007 and the petitioner filed a petition under Section 205 of the Cr.P.C for dispensing with personal appearance as ground if his holding post at Kolkatta as well as the petition for quashing the complaint was filed. However, neither summons nor the non-bailable warrant ever served. However, the petition under Section 205 of the Cr.P.C. was rejected on the ground that after cognizance of the offence under Section 406 and 420 of the Indian Penal Code, the petitioner has not appeared even on issue of bailable and non-bailable warrant of arrest. 4. Learned counsel for the petitioner, however, submits that in this case it is apparent from the 3 impugned order itself that at the out set at the time of taking cognizance the summons were issued. 5. However, the petitioner has specifically stated that neither the summon nor any bailable warrant or even non-bailable warrant ever served upon him. It has further been asserted that without report of issuance of service of summon or execution of warrant, non-bailable warrant was issued. It has further been contended that the petitioner is a personnel in corporate body and permanent seat of the petitioner is at Kolkata and it is not possible for the petitioner to attend the court on each and every date fixed in the case and has relied upon a decision reported in 2002 (3) PLJR 628 (Ashish Kumar Lal Vs. The State of Bihar & Anr.) that in case of the person having his seats of work at different States, the benefit of 205 of the Cr.P.C requires to be provided particularly in business dispute or rivalry and has further relied upon a decision reported in 2002 (3) PLJR 208 (Sumit Bose @ Sumit Ranjan Bose & Ors. Vs. The State of Bihar & Anr.) and further placed reliance upon a decision reported in 2004 (4) PLJR 24 (Jayant Dang & Prabhat Ranjan Vs. The State of Bihar & Anr.) that the proposition that if no service report on the 4 service of summon then issue of non-bailable warrant will not come in way of granting relief under Section 205 of the Cr.P.C and also relied upon a decision reported in 2009 (1) PLJR 275 (Deepak Jain Vs. The State of Bihar & Ors.). 6. Learned counsel for the State, however, contended that benefit of 205 of the Cr.P.C is only available to persons who appear in person and is not for the person who has avoided the summon and a non- bailable warrant of arrest or processes have been issued and further submits it is a case of serious nature as there is allegation that the blank cheque was given for the security has been utilized for credit purpose by filling of the dates and amounts. 7. However, taking into consideration the respective submission, the point of consideration is whether the petitioner is entitled for the benefit under Section 205 of the Cr.P.C. However, from the impugned order itself it is apparent that the cognizance was taken in this case and summon was initially issued. However, it has been asserted by the learned counsel for the petitioner that summon was never served and he has no knowledge about 5 summon and the bailable warrant and without a service of summon non-bailable warrant and processes were issued. However, this fact has not been controverted by learned counsel for the opposite party nor in the impugned order it has been mentioned that summon were duly served. However, the grant of benefit under Section 205 of the Cr.P.C is a matter of judicial discretion of the Magistrate. However, such exercise must be exercised judiciously and not arbitrarily. 8. However, having regard to the fact that the petitioner is the business personnel of corporate having his seat at Kolkata and the prosecution has been filed at Patna and no useful purpose is going to be served by the attendance of the petitioner each and every day fixed in the case. It is a matter of common experience that the criminal trial proceeds for years and there is no useful purpose in personal appearance and more so, it is totally impractical that the person working at Kolkata will appear on each and every date. However, even if a petition under Section 205 of the Cr.P.C is allowed the Magistrate may cancel the same and may order for the personal appearance of the accused as and when required by law then moreover there 6 is no allegation that cheque was handed over to this petitioner. 9. However, the decision reported in 2002 (3) PLJR 208 (Sumit Bose @ Sumit Ranjan Bose & Ors. Vs. The State of Bihar & Anr.) rendered in the similar situation where the petition under Section 205 of the Cr.P.C was rejected, has been relied upon and it is submitted that the same is applied to the facts and circumstances of the case. Again 2004 (4) PLJR 24 (Jayant Dang & Prabhat Ranjan Vs. The State of Bihar & Anr.) it was held that there is no service report regarding the issuance of summons and hence the petitioner is entitled for the benefit. 10. On careful consideration, in the facts and circumstances of the case, I find that the petitioner who is a responsible person having his seat of office at a distant place at Kolkatta, away from Patna not on account of personal status but on the basis of being association of the corporate body deserves the benefit of 205 of the Cr.P.C and hence in the facts and circumstances, the impugned order is set aside and the petition is allowed and the court below is directed to allow the benefit of Section 205 of the 7 Cr.P.C. 11. However, the court below will be at liberty to direct the petitioner to be present as and when required by the court on any date fixed. However, the petitioner shall co-operate and not put any hinder with the trial of the case and if any such hindrance is found by the trial court, and then may pass appropriate order for the personal appearance of the petitioner. Hence with these observations the petition is allowed. Kundan (Gopal Prasad, J.)