Relying on landmark judgment here and here, Single judge bench of Gujarat High Court condoned the delay of 3330 days, considering the lapse was on the part of the advocate who did not file the Written Statement in the prescribed time.
Tag: 1-Judge Bench Decision
Khushbu Devi @ Kumari Khushbu Vs Shekhar Kumar Swarnkar on 02 Nov 2022
A single judge of Jharkhand High Court held as follows,
From Para 4,
Ms. Ayushri, the learned counsel for the appellant has contended that the ex-parte judgment by the Family Court is liable to be set aside on the ground that there was no material before the Family Court to hold that summons was duly served upon the appellant on 21st May 2018.
From Para 8, 9 and 10,
8. The aforesaid mode of services of summons under Rule 9 shall have different requirements upon fulfillment of which the Court may infer or hold that summons was validly served upon the defendant. A valid service of summons upon the defendant is the most important step during 1st stage of any trial and the reason is obvious. It is a fundamental requirement in law that no one should be condemned unheard and therefore no trial of either nature, civil or criminal, can proceed without notice to the other side. For more than one reason, a tracking record cannot be the conclusive proof of valid service of summons upon the defendant. In the first place, a tracking record is required to be placed by the Registry before the Court and it must form a part of the records of the case. Secondly, a tracking record must be supported by an affidavit of Nazir or any other officer of the Court authorised in this behalf. In certain cases, the plaintiff may also lead evidence regarding service of summons with the help of the tracking record. There are other requirements under Rule 9 which have also to be considered by the Court concerned before service of summons upon the defendant is
held valid.
9. Sub-rule (5) provides that there should be an acknowledgment or any other receipt signed by the defendant or his agent, or, where the postal article containing the summons has been received back by the Court the same shall contain an endorsement by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him. In case where summons has been returned unserved or has been refused by the defendant, under Rule 19 the serving officer shall be examined by the Court.
10. The proviso to sub-rule (5) provides that the Court may declare that summons has been validly served upon the defendant notwithstanding the acknowledgment having been lost or mislaid or for any other reason if the same has not been received by the Court within thirty days from the date of issue of summons, provided the summons was properly addressed, prepaid and duly sent by registered post acknowledgment due. The acknowledgment or postal receipt is required to be brought on record for another reason also. Under Rule 15 service of summons upon any adult member of the defendant’s family is considered valid service upon the defendant. However, explanation to Rule 15 provides that a servant is not a member of the family within the meaning of this Rule and therefore the Court before holding valid service of summons upon the defendant is required to see to whom the summons was served.
YS Jagan Mohan Reddy Vs Central Bureau of Investigation on 26 Aug 2022
The Hon’ble the Chief Justice of Telangana High Court held as follows,
From Para 42.1, 43, 44.1,
42.1. After referring to Section 205 CrPC, Supreme Court held that it is within the powers of the 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 on his personal presence would itself inflict enormous suffering or tribulations on the accused and the comparative advantage would be less.
43. Delhi High Court in Chandramauli Prasad (supra) examined Section 205 CrPC in the light of the decision of the Supreme Court in Bhaskar Industries Limited (supra) and held that provisions requiring the presence of the accused which mandate that the trial be held in his presence are enacted for the benefit of the accused. If the accused person himself does not wish to avail of the right of personal appearance on every date; if he reposes the fullest confidence in the court and in his advocate, and is confident that justice will be meted out to him even in his absence, then, provided his absence does not prejudice him in any way or hinder the progress of the trial, it is not necessary for the trial court to insist on his presence.
44.1. One of the criteria for exercising the power under Section 205 CrPC is that personal appearance of the accused on each and every date of trial should not result in unnecessary harassment of the accused. However, the Court must ensure that exemption from personal appearance is not abused to delay the trial.
And in Para 45,
45. In Hiremagalur Parthsarthy Shamalah (supra), Patna High Court while adverting to Section 205 CrPC and its discretionary nature, opined that power under Section 205 CrPC has to be exercised in a reasonable manner; Court should be liberal in granting exemption from personal appearance except where serious issues or allegations of moral turpitude are involved. Even after issuance of warrant, the High Court may dispense with the personal appearance in exercise of power under Section 482 CrPC if a proper case is made out for the ends of justice. In that case, the revision petitioners were high officials posted at Pune and Shillong while the trial was to be conducted at Patna. It was held that inconvenience would be caused if they were required to be present on each and every date of hearing; more so when the revision petitioners had given undertaking to be physically present in Court when so ordered by the Court. Mere fact that cognizance had been taken and the offences alleged are non-bailable cannot be reasons for rejecting the prayer under Section 205 CrPC.
Finally from Paras 48 and 49,
48. In so far the impugned order is concerned, the trial court has taken note of the changed circumstances i.e., petitioner occupying the constitutional office of Chief Minister of the neighbouring State of Andhra Pradesh. However, trial court referred to certain observations made by this Court in the order dated 31.08.2017 that “offences committed by the petitioner are grave offences affecting the economy of the country”. I am afraid it is not open to the trial court to rely upon such observations at the very threshold. These are allegations against the petitioner brought in the form of charge sheet. At this stage, it cannot be said that petitioner had committed the offence(s). Further, the trial court erred that being away from Andhra Pradesh for two days was not a ground to invoke the discretion of the court. The trial court further erred in taking the view that the changed circumstances has no bearing having regard to the offences and allegations made by the respondent/CBI being grave in nature.
49. In my considered opinion, learned Principal Special Judge fell in grave error by bringing in the above factors while considering the request of the petitioner for exemption from personal appearance. This is further aggravated by the observation of the learned Principal Special Judge that in criminal proceedings trial should be conducted in presence of the accused and therefore, his request for exemption from personal appearance should not be considered. I am afraid learned Principal Special Judge failed to appreciate the fact that the principle that trial has to be conducted in presence of the accused is to ensure that the accused gets a fair trial; nothing is done behind the back of the accused. Provision seeking exemption from personal appearance is intended for the benefit of the accused. Those cannot be interpreted in a manner which causes hardship and prejudice to the accused.
The earlier order from trial Court is here.
Index is here.
Abhishek Singh Vs State of M.P. on 26 Dec 2022
A single judge bench of MP High Court held as follows, relying on Reema Aggarwal decision here
From Para 9,
9. Though it is an admitted position that complainant/respondent No.4 was already married and had a living spouse, when she contracted the second marriage with petitioner, however, there is no indication of word ‘valid marriage’ in Section 498-A of I.P.C. The language used therein is ‘husband or relative of husband’. These words not only rope in those who are validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband.
Sandeep Kumar Tekriwal Vs State of Bihar and Anr on 09 Sep 2008
A single judge of Patna High Court held as follows,
From Para 15,
15. Section 317, Cr. P.C provides for inquiries and trial being held in the absence of accused in certain cases. However, if the Magistrate finds that personal appearance of the accused is necessary, he would direct that accused would no longer be represented on the next date by a pleader under Section 317, Cr. P.C but would appear in person. If the accused in spite of such order does not appear in person, it would be open for the learned Magistrate to issue warrant of arrest and proceed in accordance with the procedure prescribed in Chapter-VI of the Cr. P.C and may also cancel bail and bail bond and proceed in accordance with Chapter XXXIII of the Cr. P.C It does not appear from the order of the preceding dates i.e 31-1-2008, 26-3-2008 that personal attendance of petitioner would no longer be dispensed with, and he is required to attend in person. The Magistrate in view of Section 317(1) Cr. P.C ought to have given an opportunity to an accused to appear in person who was being allowed to be represented through a pleader. The order of preceding dates in the case on the contrary shows that Magistrate in fact accepted the representation under Section 317, Cr. P.C The magistrate has to follow the procedure prescribed therein, if it does not dispenses with his personal attendance. A Magistrate while rejecting a representation under Section 317 Cr. P.C cannot at the same time cancel bail bond and issue non-bailable warrant of arrest, if on preceding dates has not clearly directed that personal attendance under Section 317, Cr. P.C will no longer be dispensed with. The Court ought to provide a reasonable opportunity to the accused to appear in person whose representation was earlier being allowed under Section 317, Cr. P.C In this case, it appears that trial lingered as a co-accused Prem Prakash was absconding. Learned counsel for the petitioner has also submitted that there have been no latches on his part.
Citations : [2009 AIR JHAR R 2 203], [2009 PLJR 2 260], [2008 SCC ONLINE PAT 254], [2009 (2) PLJR 263], [2009 CRI LJ 523]
Other Sources :
https://www.casemine.com/judgement/in/56b49331607dba348f00518d
Phani Bhushan Potu Vs State of Telangana and Anr on 16 Aug 2022
A single judge bench of Telangana HC held as follows,
From Paras 3-7,
3. Learned counsel for the petitioner submits that the petitioner is arrayed as Accused No.3 in the Calendar Case in question and the trial Court insisted personal appearance of the petitioner for each and every adjournment and the petitioner has to accompany his daughter for her admission into College and, therefore, exemption from appearance may be granted till 10th October, 2022 by setting aside the impugned order dated 19.07.2022.
4. Per contra, the learned Assistant Public Prosecutor contends that the petitioner can invoke Rule 37 of the Criminal Rules of Practice and Circular Orders, 1990.
5. Learned counsel for the petitioner submits that as his personal appearance is insisted by the trial Court, he did not invoke the said provision.
6. When there is dire necessity for the Accused to be present elsewhere and, therefore, cannot attend the trial Court and make personal appearance, the Courts are liable to consider the ground urged and apply a pragmatic approach. Therefore, this Court considers it desirable to dispose of the present Criminal Revision Case making such a direction.
7. Resultantly, this Criminal Revision Case is disposed of directing the Court of III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad, not to insist upon personal appearance of the petitioner/Accused No.3 in C.C.No.280 of 2012 that is pending on the file of the said Court, in case the petitioner files an application either under Section 317/205 Cr.P.C. or under Rule 37 of the Criminal Rules of Practice and Circular Orders, 1990, by raising just and sufficient ground for exemption of personal appearance till 10th October, 2022.
Gogineni Lakshmi Gowthami Vs State of AP and Anr on 20 Oct 2022
A single judge allowed the marking of documents and examination via video conferencing tools.
From Para 2,
2. In the course of the trial of the case, the respondent had filed Crl.M.P.No.76 of 2022 under Section 275(1) Cr.P.C and 285(3) of Cr.P.C to permit the respondent to mark documents and to depose before the Court of Trial via Skype or Blue Jeans or any other alternative electronic media and for costs. This application was allowed by the trial Court by an order dated 31.03.2021 with certain conditions.
From Para 5,
5. Smt.K.Sesha Rajyam, learned Senior counsel appearing on behalf of Smt.Hima Bindu learned counsel for the respondent would submit that the application would be covered by the provisions of Section 273 of Cr.P.C and mere mentioning of a wrong provision in the order would not invalidate the order. She submits that Section 273 of Cr.P.C only stipulates that evidence taken during the course of trial should be in the presence of the accused and there is no restriction as to where the evidence can be recorded. She would further rely upon a Judgment of the Hon’ble Supreme Court in the case of State of Maharastra vs Dr Praful B.Desai1. She contends, on the basis of the above Judgment, that recording of evidence by way of video conferencing is permissible and does not in any manner violate any of the provisions of the Cr.P.C.
From Para 9,
9. Sri Akhil Krishnan, learned counsel for the petitioner would submit that the right of cross examination of the petitioner has been forfeited by the trial Court, during the pendency of the present petition. If an order has been passed, the same shall be disregarded and the trial Court shall afford an opportunity of cross examination to the petitioner as and when the respondent makes necessary arrangements in terms of the order for being examined through video conference. For this purpose, the respondent shall be given two weeks from today to comply with the directions of the trial Court in Crl.M.P.No.76 of 2022.
The time limit to finish Cross Examination through Video conferencing was extended considering some difficulty.
Chintakayala Vijay Vs State of AP and Ors on 05 Dec 2022
Relying on Landmark judgment here, Single bench of AP HC held that,
From Para 6,
6. In the circumstances, this Writ Petition is disposed of directing the respondents herein to strictly comply with the directions of the Hon’ble Supreme Court. This would include the requirement of the respondents uploading all the complaints registered by the respondents on to the website of the police authorities or the website of the State Government, in the absence of any website being maintained by the police authorities. There shall be no order as to costs.
Ravi Ramesh Babu Vs State of Andhra Pradesh on 23 Mar 2022
A single judge of AP High Court held as follows,
From Para 4,
4. Learned counsel further relied on the decision passed by this Court in Crl.P.No.1954 of 2020, following the ratio laid down by the Hon’ble Apex Court rendered in Criminal Appeal No.179 of 2008 in the case of “Suresh Nanda V. CBI”, wherein the Apex Court observed that impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing. Accordingly, this court held that neither the Police nor the Courts have power to seize the passport or to direct the accused to deposit or surrender the passport even when a criminal case is pending in the court of law and only the Passport Officer is the competent authority to impound the passport.
XXX Vs The State of Telangana on 09 Nov 2020
A single judge of Telangana High Court held as follows:
From Para 18, (When Seizure turns into Impounding – 4 weeks from Seizure)
18. Having given due consideration to the submissions made as above and also taking note of the precedents on which reliance is placed by the learned Counsel appearing for the parties, it is to be seen that retaining of passport by the police authorities after the same is seized beyond a period of four weeks would amount to impounding by the police authority, which power the said authority lacks, as has been held by the Hon’ble Supreme Court in Suresh Nanda V. C.B.I. (2008) 3 SCC 674. Further, this court having regard to the law laid down by the Apex Court and the provisions of the Cr.P.C. including Section 457 Cr.P.C., has by its order in I.A. No.1 of 2019 in W.P. No.22956 of 2019 held that retaining the seized property by the police after being reported to the Magistrate, would have to be considered only as a custodian and such retaining cannot be considered as impounding by the police authorities and passport holder has to make an application to the concerned Court for release of the passport.
From Para 19,
However, even after commencement of functioning of Courts, if the respondent police authority has failed or fails to take steps in depositing the passport within a period of four weeks, the same would amount to impounding, which power the authorities are not conferred with.
From Para 20,
20. Further, even after the seized material is deposited into Court under seizure report, when it comes to passport seized and deposited into Court, the Court is not empowered to impound the passport under Section 104 of Cr.P.C. upon such deposit. The power to impound a validly issued passport is specifically conferred on the passport authority under Section 10(3) of the Passports Act, 1967, being a special enactment would prevail over Cr.P.C. a general enactment. Thus, even after deposit of seized property into the Court, the respondent authority would be required to take further steps by approaching the passport authority under the Passports Act, 1967, and seek for impounding of passport. The said situation can arise only if any one of the condition enumerated in clause (a) to (h) of sub-section (3) of Section 10 of the Passports Act, 1967 being attracted. At this stage, the judgement rendered by the Madras High Court in Jeyabalan case (supra) would be of aid to the case of the petitioner.
From Para 21 (Very Imp: Passport/Travel document can be cancelled by Passport Authority, even when the physical possession of passport is not there with them)
21. It is also to be seen that for impounding of passport by the passport authority on attracting any of the conditions specified in Sub-section (3) of Section 10 of the Passports Act, 1967, having of physical custody of passport is neither mandatory nor specified. It is only the satisfaction of the passport authority that any of the conditions stipulated in (a) to (h) of Section 10(3) is attracted, the authority can impound the same, irrespective of where the passport holder is residing at. However, before passing of impounding order, the authority is required to give opportunity of hearing to the concerned. Thus, the claim of the respondent authorities that, if passport is released to the petitioner, it will be difficult to apprehend him again, does not appeal to this Court for being accepted for the aforesaid reasons and also having regard to the wide amplitude of powers, the passport authority enjoys, unless the petitioner escapes to countries with whom India does not have Extradition Treaties or Arrangements or seeks asylum in a country so permitting. Even otherwise, the said apprehension also appears to be without any basis for the reason, the petitioner claims to be working onsite/onshore with an Indian IT company and would be on employment visa and all his details would be available with the employer as to the onsite location of working and client details and at a call of the employer, the employee can be withdrawn and deported from wherever he is.
Note: Name of the Petitioner redacted upon his request email dt: 13 Jul 2023
