TMI Blog2022 (12) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons beyond any shadow of doubt. Allegation made against the accused is not of such nature where personal attendance of the accused and his identification is absolutely necessary. Moreover, when the petitioner undertakes that he would not dispute his identity, this Court fails to understand as to why his application under Section 205 of the Cr.P.C was rejected. The learned trial judge failed to consider that the nature of offences attributed to the petitioner was not of such nature that the petitioner should be present before the court throughout the trial preferable on each and every date. In the impugned order, the learned trial judge observed that the nature of job of the petitioner is not that all monumental importance - The learned trial judge also failed to appreciate that no useful purpose would be served by requiring personal attendance of the petitioner and also the course of trial of the case would not hamper on account of his absence. An application under Section 205 of the Cr.P.C cannot be rejected on the plea that the accused has alternative remedy Section 317 of the Cr.P.C. The learned trial court also failed to consider that provision under Section 205 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilanthropic activities. Thirdly, the petitioner is working as a Managing Director of a company which deals with industrial boilers. Very often defects are located in such industrial boilers in the form of developing cracks perforation etc. In order to repair the boilers conventionally, those are to be cooled down. Then after repairing the boilers are needed to be ignited and then after a considerable time the boilers attain their requisite temporary for their functioning. The petitioner s company as the scientific and technological no how for repairing of boilers without turning them off for this specialized job and he requires to visit almost regularly to the factories and industries not only inside the country but also abroad. If he be not personally exempted, there would be huge loss in industrial sector. Fourthly, he is honourary office bearer and member of various business organizations, like CII, AIMA, FICCI etc. He also attains meetings and programmes of the said organizations. The petitioner also undertook that he would not challenge his identity in any stage of trial: an Advocate on his behalf would be present before the trial on each and every occasion whenever the case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s commitment in other business organizations would be hampered if he is directed to appear in court during trial or not. However, the learned trial judge failed to consider his professional commitment. It is also submitted that when the petitioner undertook that he would not challenge his identity, he would not raise any objection with regard to the evidence recorded on behalf of the complainant during trial. An Advocate duly appointed by him would represent him on each and every date of trial and he would be personally present on any day when his presence would be required by the trial court, learned trial judge acted illegally and material irregularity in rejecting the application under Section 205 of the Cr.P.C. 8. On this score the learned Senior Counsel relies on Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad reported in (2020) 12 SCC 695. It is pointed out by the learned Senior Counsel referring to the aforementioned decision that the appellant was summoned by the trial court for the offences punishable under Section 120B read with Sections 420 and 409 of the IPC and Sections 9, 12 and 13(2) read with Sections 13(1)(c) and (d) of the Prevention of Corru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The learned Counsel for the opposite party next refers to a decision in the case of T.G.N Kumar vs. State of Kerala Ors reported in AIR 2011 SC 708 and submits that it is within the powers of a Magistrate and in his judicial discretion but dispense with the personal appearance of an accused either through out or at any particular stage of a criminal proceeding. If the Magistrate finds that personal presence of an accused is required for the purpose of conducting fair and effective trial, he may very well within his discretion reject an application under Section 205 of the Cr.P.C. The revisional court should not interfere with the order the learned trial judge as he exercised his discretion in accordance with law assigning cogent and acceptable reasons. Thus, it is urged by the learned Advocate for the opposite party that in appropriate cases where the accused faces acute difficulty due to distance between his place of residence and the place of trial or where the accused suffers from physical ailment that may put him in a troublesome position to appear in the trial court or any other similar reason, the trial court can exempt personal appearance of an accused. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the foremost duty of the trial court to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. 17. Needless to say that the petitioner along with other accused persons are facing trial for committing offence punishable under Section 70(1)(b) and Sections 19(1) and 34(3) of the Insolvency and Bankruptcy Court. Section 70(1)(b) is a penal provision for misconduct in course of corporate insolvency resolution process (CIR). It is also alleged that the petitioner committed offence under Sections 19(1) and 34(3) of the IBC by not extending, assistance and cooperation to the official liquidator. 18. It is obvious that no useful purpose would be served by requiring personal attendance of the petitioner because the fate of the trial would depend on complainant s success in establishing the charge against the accused persons beyond any shadow of doubt. Allegation made against the accused is not of such nature where personal attendance of the accused and his identification is absolutely necessary. Moreover, when the petitioner undertakes that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately. Plain reading of Section 317 shows that inquiry and trial of a criminal case may be held in absence of an accused in certain cases where the learned trial judge is satisfied with personal attendance of the accused before the court is not necessary in the interest of justice or that the accused persistently disturbed the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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