IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL PETITION No.5276 OF 2009 Between: M/s. Margadarsi Financiers ..... Petitioner/Accused No.1 AND 1 Sate of Andhra Pradesh, rep. By its authorized Officer, u/s. 58-E, RBI Act, 1934. 2 The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. ..... Respondents CRIMINAL PETITION No.5278 OF 2009 Between: Ramoji Rao ..... Petitioner/Accused No.2 AND 1 Sate of Andhra Pradesh, rep. By its authorized Officer, u/s. 58-E, RBI Act, 1934. 2 The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. ..... Respondents The Court made the following: COMMON ORDER: These Criminal Petitions are filed under Section 482 Cr.P.C. seeking to quash the common order, dated 13.07.2009, in Crl.M.P.Nos.2619 of 2009 and 2620 of 2009, in C.C.No.540 of 2008, on the file of the learned First Additional Chief Metropolitan Magistrate, Hyderabad, whereunder and whereby, the Petitions filed by A1 and A2 respectively under Section 205 Cr.P.C. to dispense with their personal attendance in C.C.No.540 of 2008, were dismissed on the ground that the record/documents involved were bulky; that during trial while recording evidence, many questions might arise and there was every possibility of delay in trial on the ground of seeking instructions for want of the accused. 2. The brief facts that are necessary for the disposal of the present Criminal Petitions may be stated as follows: The State of Andhra Pradesh, represented by the Authorised Officer under Section 58E of the Reserve Bank of India Act, 1934, filed a complaint against the petitioners/A1 and A2 for violation under Sections 58(B)(5A) and 58E of Reserve Bank of India Act, 1934 (for Short, ‘the Act’). The petitioner-A1 is the Margadarsi Financiers, whereas A2 is representing the A1-firm. The petitioner/A2 is a businessman of repute. He is the Promoter and Chairman of a business conglomerate called Ramoji Group, wherein various business activities of considerable magnitude including publishing, television broadcasting, foods, chit funds, hotels, film production and distribution etc., are carried on. It is stated that Ushodaya Enterprises Pvt. Ltd., a company promoted by the petitioner, owns and publishes the newspaper ‘EENADU’. This company also owns and operates 12 Satellite Television Channels called Eenadu Television Network (ETV in short) in 11 Indian languages, namely, ETV-Telugu, ETV2-Telugu, ETV-Bengali, ETV-Marathi, ETV-Kannada, ETV-Urdu, ETV- Gujarathi, ETV-Uttar Pradesh, ETV-Madhya Pradesh, ETV-Oriya, ETV-Bihari, ETV-Rajasthani and also manufactures food products under the brand name “PRIYA”. Petitioner/A2 is the main Architect of Ramoji Film City, the holder of Guinness Book of World Records, as the largest Film Studio Complex in the World which was developed by M/s Ushakiran Movies Ltd., and some other companies in the group promoted by the petitioner. These and various other businesses carried on by him keep him busy. Petitioner/A2 is also the Editor of ‘EENADU’ Telugu daily newspaper and to discharge his duties, his presence in the office is required every day. He, therefore, conducts his business from Ramoji Film City. He is not in a position to move freely owing to his various business activities. Further, he is facing grave security threat, which fact was also published in the media. The State Government has provided security to him. The petitioner, being aged 72 years, is a senior citizen. The business activities of Ramoji group are public service oriented which require day-to-day attention. As such, the presence of the petitioner is essential in the office on every working day and it would be difficult for him to attend the Court in person on every date of hearing. It is stated that the petitioner would file a separate undertaking affidavit to the effect that his counsel would represent him in the Court on every date of adjournment and that his absence will not in any manner hamper with the trial. That was resisted by the respondent/complainant by filing a counter affidavit stating that to averment that presence of petitioners was required in the office of the ‘EENADU’ Daily Newspaper everyday is not correct. It is stated that in C.C.No.23 of 2007, filed against the petitioner on the file of the learned VI Additional Metropolitan Sessions Judge, Secunderabad, a petition filed by him under Section 205 of Criminal Procedure Code, it was stated that he is the Editor of Telugu Daily ‘EENADU’ and that as an Editor of ‘EENADU’, he lays down general policy of the Newspaper. As such, the petitioner has no personal knowledge of the day-to-day selection and publication of news items and has no pre-publication knowledge of impugned news item. It is further stated that the petitioner is not in a position to move about freely owing to his various business activities and that he is facing grave security threat, are not valid grounds for exempting his personal appearance on every date of hearing. In this regard, if the petitioner makes a request, the competent authorities will provide sufficient security to him for his attendance in the Court. It is stated that the above case relates to the acceptance of deposits by the petitioner in violation of Section 45(S) of the Act. The amount of deposits so collected, the number of depositors and the supporting documents are very huge. Admittedly, the amount of deposits collected is around Rs.2,600 crores, spread over around 2.75 lakh depositors. The further proceedings in a case of this nature and magnitude will require the personal attendance of the petitioner at the crucial stages and at the time of taking evidence. It is submitted that the attendance of the petitioner is essential and mandatory, while substance of accusation is being stated to him and at the procedure to be followed, if he pleads guilty or not guilty. Under Section 273 of Cr.P.C., all evidence has to be taken in the presence of the accused. On the facts and in the circumstances of the case, the personal attendance of the petitioners/A1 and A2 is necessary and mandatory, at the stage of examination under Section 313 of Cr.P.C. 3. Now the point for determination is whether the impugned order, dated 13.07.2009, in Crl.M.P.Nos.2619 of 2009 and 2620 of 2009, in C.C.No.540 of 2008, on the file of the learned I Additional Chief Metropolitan Magistrate, Hyderabad, is correct, legal and proper? 4. No doubt, this criminal petition is filed under Section 482 of Cr.P.C. to quash the proceedings. The inherent powers of the High Court under Section 482 Cr.P.C. can be exercised to give effect to any order under this Code, or to prevent abuse of the process of Court, or otherwise, to secure the ends of justice. Crl.M.P.Nos.2619 of 2009 and 2620 of 2009 are filed under Section 205 of the Cr.P.C. Under Section 205 Cr.P.C., discretion has been given to the concerned Magistrate to dispense with the personal attendance of the accused in the Court in a criminal case. The law is well settled that the discretion has to be exercised judiciously but not arbitrarily or capriciously. 5. Though it is alleged that the petitioners/A1 and A2 collected the deposits worth about Rs.2,600 crores spread over around 2.75 lakhs depositors, according to the learned Senior Counsel for the petitioners all the amounts have been repaid to the depositors and at present, only an amount of Rs.19.0 crores has to be paid, and that as the depositors have not come forward to take back the money after surrendering the deposit certificates, the said amount has not been paid to them. On two grounds, the petitions are filed to dispense with the presence of the petitioners. One is security threat and another is he was busily engaged in various activities of the television channels, Ramoji Film City, manufacturing of food products, etc. 6. Insofar as the security threat is concerned, except a bald allegation that petitioner/A2 is facing a grave security threat, which fact was also published in the media, there are no further details with regard to the nature of threat he is facing. As a matter of fact, the petitioner himself admitted that the Government has given security to him. Therefore, in the absence of any pleading and proof, the security threat cannot be a ground to dispense with the presence of the petitioners. 7. On the second aspect, the learned counsel appearing for the petitioners relied upon a decision reported in S.V. Muzumdar and others v. Gujarat State Fertilizer Co. Ltd. and another[1], wherein it is held that: “Taking into account the fact that the cases have been pending for nearly a decade, we direct that the matter be taken up on 08.08.2005 by the trial Court. If the appellants file applications in terms of Section 205 of the Code for dispensing with their personal attendance, the trial Court will do to take note of the same and dispense with the personal attendance by stipulating conditions in terms of Section 205(2) of the Code. It has to be borne in mind that while dealing with an application in terms of Section 205 of the Code, the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. We make it clear that if at any stage the trial Court comes to the conclusion that the accused persons are trying to delay the completion of trial, it shall be free to refuse the prayer for dispensing with personal attendance. The trial Court would do well to complete the trial by the end of November 2005. The parties shall cooperate in that regard. We make it clear that we have not expressed any opinion on the merits of the case.” From the above decision, it is clear that when no useful purpose would be served by acquiring the personal attendance of the accused, then only the personal attendance can be dispensed with. Similarly, when the progress of the trial was likely to hamper on account of his absence, the presence of the accused cannot be dispensed with. In the aforesaid mentioned decision, the criminal case was pending more than a decade. Admittedly, in this case, the present one, the accused has to be examined under Section 251 of the Cr.P.C. 8. Learned counsel appearing for the petitioners also relied upon a decision reported in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and others[2], wherein it is held thus: “The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either 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 on 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. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.” The dictum of the above decision would clearly go to show that the discretion to be exercised by the Magistrate under Section 205 of the Cr.P.C. can be exercised only in the rare instances where the accused was residing at a far off place by carrying on business or any other good reason. 9. It is not in dispute before this Court that the offence under Section 45 (S) of the Act, is only punishable upto two years and fine twice the amount of default. As things stand as on today, the procedure to be followed by the Magistrate is only the summons procedure, but however under Section 259 Cr.P.C., if it appears to the Magistrate that in the interest of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, the Magistrate may proceed to re-hear the case in the manner provided by this Code. 10. Therefore, from the above decisions, it is clear that for good and compelling reasons, the personal attendance of the accused can be dispensed with. The second reason as stated in the petition is that presence of petitioners in the office to discharge his duties everyday is required. Admittedly, the place where he was transacting the business is not far away from the Court in which the case is pending. In view of the magnitude of the amounts involved in the case, though law permits the accused to answer through his advocate under Section 251 of the Cr.P.C., but in the interest of both the accused and the de facto complainant, he has to answer the accusations levelled against him under Section 251 Cr.P.C. personally. After first appearance, when the case is posted for examination of the accused under Section 251 Cr.P.C., the present applications seem to have been filed. So, instead of giving a blanket order, totally dispensing with the presence of the petitioners, considering the facts and circumstances of the case, it is not desirable to do so. But whenever the accused feels it difficult to attend the Court. In view of his business or that his presence is not required in the trial Court, he can as well make use of the other provisions by filing applications duly dispensing with his presence. Exercising the powers under Section 482 Cr.P.C., this Court cannot decide when the presence of the accused is necessary and when the presence of the accused is not necessary. It is exclusively within the domain of the Magistrate who deals with the case. After proper application of mind, the impugned order has been passed by the learned Magistrate by holding that the number of documents are required to be proved and number of witnesses have to be examined in the trial Court and that the absence of the accused can hamper the trial of the case or progress of the case. When the order is passed in accordance with Section 205 of the Cr.P.C. and after recording the reasons for not allowing the application under Section 205 of the Cr.P.C. and considering the magnitude of the case involving several crores of rupees affecting the interest of several lakhs of depositors, though it is under dispute, it is not a fit case to interfere with the impugned order. Considering these aspects, the trial Court rightly dismissed the application and that order does not suffer from any legal infirmities so as to call for the interference of this Court, so as to exercise the powers under Section 482 Cr.P.C. 11. Accordingly, the Criminal Petitions are devoid of merits and are accordingly dismissed. ______________ K.C.BHANU, J Dated: 3rd August, 2009. KL/TSY [1] (2005) 4 SCC 173 [2] (2001) 7 SCC 401