Section 205 CrPC Also Applicable In Cases Before Special Judges Conducting Trials Under Specific Statutes: Jharkhand High Court

Rejecting Central Bureau Of Investigation (CBI)'s contention that a plea under Section 205 of CrPC is not maintainable before a Special Judge, the Jharkhand High Court granted relief to an accused in a case under Prevention of Corruption Act and exempted him from personal appearance before the trial court.

Additional Solicitor General Anil Kumar had earlier argued that Section 205 of CrPC is applicable only in trials before judicial magistrate. "Section 205 of Cr.P.C. power is not there in the Special Judge who is conducting trial as a Special Judge under the various provision of Special statute... the entire Cr.P.C. is not applicable with regard to Special Judge who is conducting the trial and in that view of the matter section 205 of Cr.P.C petition itself was not maintainable before the Special Judge," Kumar argued before the court.

Justice Sanjeev Kumar Dwivedi noted that Section 22 of the PC Act states that CrPC will apply, subject to certain modifications.

"Sub-Section 5 of the Prevention of Corruption Act speaks of procedure followed by the Special Judge for the trial of warrant cases by the Magistrate. The trial before the learned Magistrate commence in view of Chapter 16 of the Act by way of supplying police paper under section 207 of the Cr.P.C. and the trial under the warrant cases starts under Chapter 19 of the Cr.P.C. Thus, for the warrant cases also section 207 Cr.P.C. is applicable. In view of that it cannot be said that section 205 of Cr.P.C. cannot be considered by the Special Judge who is conducting the trial under the Special Act," said the bench.

It added that the view is fortified by Puneet Dalmia V. Central Bureau of Investigation, Hyderabad wherein the case pertained to PC Act and the Supreme Court allowed the petition under section 205 of CrPC.

"The only modification indicated in Section 22 of the Act are with regard to sub-section of Section 243, sub-section (2) of Section 309, 397, sub-section (2) of Section 317, sub-section (1) of Section 397 Cr.P.C. apart from these sections so modifications are indicated. Thus, Cr.P.C. will apply and 205 Cr.P.C. power is not excluded from the Special Judge under the P.C. Act," said the bench.

The court said Section 205 of Cr.P.C power is a discretionary power and even though the normal rule is that evidence has to be taken in presence of accused, the same can also be take in presence of the counsel after grant of exemption "on any special circumstances".

"The administration of criminal justice should not be allowed to hamper due to the act of any of the accused. There must be progress in the trial. The purpose of attendance of the accused is not for attendance only but the purpose is to progress of the trial and if in absence of the accused the trial can proceed and progress takes place the Court is required to consider the magnitude of suffering which a particular accused may face," said the bench.

The court made the observation in its decision on a petition challenging an order passed by the AJC, XVIII-cum Special Judge, CBI, Ranchi. The petitioner Sunil Shah had sought exemption from personal appearance in the case before Special Court. However, the application was rejected on the grounds that it was not applicable to serious charges.

Granting relief to Shah and setting aside the order of Special, the court said the petitioner has been able to make out a case for exemption from personal appearance. It observed that he suo motu appeared before the trial court after receiving summons and was not arrested during the investigation.

 "The petitioner shall give an undertaking to the learned trial court that he will not dispute his identity in his case and that the name of the learned Advocate representing him before the learned court will be disclosed before the learned court and he will be permitted to represent the petitioner and would appear before the learned trial court on his behalf on each and every date of hearing and that he shall not object recording of evidence in his absence and no adjournment shall be asked on behalf of the petitioner or his Advocate who will represent the petitioner," said the court.

The court also directed Shah to appear before the court below for the purpose of framing of charge and also on the hearing dates whenever the trial court insists for his appearance.

Case Title: Sunil Shah vs. Union of India [Cr.M.P. NO. 1164 of 2022]

Appearance:

For the Petitioner : Mr. Sumeet Gadodia, Advocate Mrs. Shilpi Sandil Gadodia, Advocate Mr. Ritesh Kumar Gupta, Advocate Mrs. Aanya, Advocate

For the C.B.I. : Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, A.C. to A.S.G.I.

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