WP.2579,2580-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 2579 OF 2010 WITH CRIMINAL WRIT PETITION No. 2580 OF 2010 Kailash Gupta ...Petitioner Vs. The State of Maharashtra & Anr. ...Respondents *** Mrs. P. J. Kanani & Tejal Purohit, for the Petitioner. Mr. P. A. Pol, APP for the Respondent-State. Mr. Subodh Desai i/b Mr. R. G. Sheth i/b R. G. Sheth & Co. for accused No.2. *** CORAM: V. M. KANADE J. DATE : DECEMBER 14, 2010 P.C. 1. Heard the learned counsel for the petitioner. The petitioner is aggrieved by the order passed by the learned Magistrate dated 7th August, 2010. By the said order, the learned Magistrate was pleased to dismiss the application, which was filed by the petitioner under S. 317 Cr. P. C. for exempting personally in the trial Court and also allowing the accused to be represented through his advocate. In support of his contention, the learned counsel appearing on behalf of the petitioner has WP.2579,2580-10 - 2 - relied on the judgment of the Apex Court in the case of – Bhaskar Industries Industries Ltd. vs. Bhiwani Denim and Apparels Ltd. [(2001(7) SCC 401]. He submitted that the Apex Court in said case has specifically held that the accused can be exempted from personal appearance even from the first date, provided that such appearance is through counsel. She submitted that the Apex Court has further held that the accused should furnish satisfactory undertaking to the Court that he would not dispute his identity, and further that consent is given for evidence being taken in his absence. It is submitted that such an undertaking is given by the petitioner to the trial Court. 2. On the other hand, the learned counsel for respondent submitted that the accused had remained absent on each and every date and that the trial Court has not accepted the medical certificate which was given by the accused. He further submitted that accused should remain present on one date and his plea should be recorded thereafter he may be exempted from appearing before the trial Court. 3. There is some substance in the submissions made by the learned counsel for the petitioner. The Apex Court in the case of Bhaskar Industries (supra) has observed in paragraph 17 as under- “17. Thus, in appropriate cases the magistrate can allow an WP.2579,2580-10 - 3 - accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.” 4. In the present case, the petitioner is residing at Ahmedabad. The petitioner has also given an undertaking that he will not dispute his identity and that his plea may be recorded through his advocate. The Apex Court also in paragraph 19 has considered the hardship which is caused to the accused, since he is residing at the place far away from the Court. Taking into account the over all view of the matter, in my view, the Magistrate ought to have exempted the petitioner from appearing in WP.2579,2580-10 - 4 - the trial Court and his plea should have been recorded through his advocate. In view of the specific undertaking given by him, the impugned order is set aside. 5. The petitioner is exempted from appearing in the trial Court. His plea may be recorded through the advocate. His statements under S. 313 Cr. P. C. may be recorded through the advocate. The petitioner, however, shall give an undertaking to the learned Magistrate that he will not dispute his identity; that the evidence may be recorded in his absence; and that he will not dispute the correctness of the answers, recorded in the statement under S. 313 Cr. P. C. The learned Magistrate shall follow the procedure laid down in the provision under S. 313(5) Cr. P. C. and also the guidelines laid down in the case of - Keya Mukherjee, Appellant vs. Megma Leasing Ltd. & Anr., Respondents [(2008) 8 Supreme Court Cases 447. The learned Magistrate, however, may cancel the exemption which may be granted to the petitioner, in the event the advocate of the petitioner remains absent on two dates. Hearing of the trial is expedited. Both the writ petitions are disposed by this common order. [ V. M. KANADE J.]