Puneet Dalmia vs Central Bureau Of Investigation on 16 December, 2019


Supreme Court of India

Puneet Dalmia vs Central Bureau Of Investigation on 16 December, 2019

Author: Ashok Bhushan

Bench: Ashok Bhushan, M.R. Shah

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                                                                              REPORTABLE

                                      IN THE SUPREME COURT OF INDIA

                                    CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO.1901 OF 2019
                                   [Arising out of SLP (Crl.) No. 8136 of 2018]


          Puneet Dalmia                                                      .. Appellant

                                                      Versus

          Central Bureau of Investigation, Hyderabad                         .. Respondent


                                                JUDGMENT

M. R. Shah, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 10.09.2018 passed by the High Court for

the State of Telangana and the State of Andhra Pradesh at

Hyderabad in Criminal Petition No. 3880 of 2016, by which the

High Court has dismissed the said application and has rejected the
Signature Not Verified

Digitally signed by
ARJUN BISHT
Date: 2019.12.16

prayer of the appellant for dispensation with his personal
16:46:42 IST
Reason:

appearance/attendance in a case that pertains to the charge­sheet
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bearing C.C. No. 12 of 2013, one of the original accused in the

aforesaid case has preferred the present appeal.

3. That the appellant is accused No. 3 in the case pertaining to

the charge­sheet bearing C.C. No. 12 of 2013 pending before the

learned Principal Special Judge for CBI Cases, Hyderabad. That the

appellant was summoned by the learned Trial Court vide order

dated 13.05.2013 for the offences punishable under Sections 120­B

read with Sections 420, 409 IPC and Sections 9, 12, 13(2) read with

13(1)(c) and (s) 12 of the Prevention of Corruption Act. That, by an

order dated 07.06.2019 the appellant has been granted the bail.

However, pursuant to the directions issued by the High Court, the

appellant is required to attend the learned Trial Court on every

Friday. It is the case on behalf of the appellant­original accused No.

3 that since 2013 the appellant has been remaining present before

the learned Trial Court on every Friday.

3.1 That the appellant submitted an application before the learned

Trial Court under Section 205 of the Cr.P.C. for dispensing with his

personal appearance/attendance. It was submitted on behalf of the

appellant that he is the Director on the boards of several companies
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and is pre­occupied with the management and attending day­to­day

affairs on account of business exigencies of the companies. It was

also submitted on behalf of the appellant that for attending the

learned Trial Court on every Friday, he is required to travel from

Delhi to Hyderabad spending not less than two days. Therefore, it

was the case on behalf of the appellant that on account of posting

the case on every Friday, he has been facing undue hardship in

meeting his business commitments, in addition to continuous

financial loss being caused to him. Therefore, it was prayed to

dispense with his appearance permitting his counsel Sri Bharadwaj

Reddy to appear on his behalf.

3.2 The said application was opposed by the respondent­CBI. It

was submitted on behalf of the CBI that the grounds on which the

appellant has requested to dispense with his appearance before the

learned Trial Court are not germane and cannot be a ground to

dispense with his appearance before the learned Trial Court under

Section 205 Cr.P.C. It was also contended on behalf of the CBI that

the appellant is facing very serious charges/offences. The learned

Principal Special Judge for CBI Cases, Hyderabad dismissed the
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said application. Aggrieved by the order passed by the learned Trial

Court, the appellant preferred a petition before the High Court. By

the impugned judgment and order, the High Court has dismissed

the said petition and has confirmed the order passed by the learned

Trial Court rejecting the application submitted by the appellant and

has refused the exemption from personal appearance of the

appellant before the learned Trial Court. Hence, the present appeal.

4. Shri Mukul Rohatgi and Shri Neeraj Kishan Kaul, learned

Senior Advocates appearing on behalf of the appellant have

vehemently submitted that, in the facts and circumstances of the

case, the High Court as well as the learned Trial Court have

committed a grave error in not allowing the application submitted

by the appellant from exempting him to appear before the learned

Trial Court on every Friday.

4.1 It is vehemently submitted by the learned Senior Advocates

appearing on behalf of the appellant that since 2013, on every

Friday, the appellant is attending the learned Trial Court and the

charge­sheet is already filed. It is submitted that the trial is not

likely to be concluded at the earliest as 13 charge­sheets are filed in
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this case arising out of the same FIR and there are number of

accused. It is submitted that the appellant is ready and willing to

file an undertaking that non­appearance of the appellant before the

learned Trial Court, on the exemption being granted, shall not come

in the way of proceeding with the trial and that he shall appear

through advocate and that he has no objection if the evidence is

recorded in his absence. It is submitted on behalf of the appellant

that he shall remain present before the Court as and when required

and ordered by the learned Trial Court. It is further submitted on

behalf of the appellant that he is ready and willing to abide by any

other conditions which may be imposed by this Court and which

may deem fit and proper.

4.2 It is further submitted by the learned Counsel appearing on

behalf of the appellant that in fact the learned Trial Court has

already granted permanent exemption from personal appearance to

two of the accused persons in cases arising out of the same FIR and

on the ground of their business commitments, though in fact both

of them are based at Hyderabad only.

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4.3 The learned counsel appearing on behalf of the appellant has

also relied upon the decisions of this Court in Bhaskar Industries

Ltd. V. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401 and

Rameshwar Yadav V. State of Bihar (2018) 4 SCC 608 in support

of the prayer to dispense with the presence of the appellant before

the learned Trial Court on every Friday.

4.4 Making the above submissions and relying upon the above

decisions of this Court, it is prayed to allow the present appeal and

consequently allow the application submitted by the appellant for

dispensation with his personal appearance before the learned Trial

Court.

5. The present appeal is vehemently opposed by Shri Vikramjit

Banerjee, learned ASG appearing on behalf of the respondent­CBI.

5.1 It is vehemently submitted by Shri Banerjee, learned ASG

appearing on behalf of the respondent­CBI that, as rightly held by

the learned Trial Court as well as the High Court, the grounds on

which the appellant has requested to dispense with his personal

appearance, namely, on account of business commitments and pre­

occupation in connection with his business activities and
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inconvenience being caused to the appellant to appear before the

learned Trial Court, are not valid grounds for allowing the

application under Section 205 Cr.P.C.

5.2 It is further submitted by Shri Banerjee, learned ASG that in

fact the High Court has specifically observed that if the appellant is

exempted from personal appearance before the learned Trial Court,

in that case, after such an exemption is granted, he may not co­

operate in proceeding further with the trial and that the trial will be

delayed. It is submitted that the appellant­accused and others are

involved in the grave offences causing dent to the economy of the

State and affecting the economy of the country. It is submitted

that, therefore, the trial is required to be concluded at the earliest.

It is submitted that in the impugned judgment and order the High

Court has specifically observed and considered the conduct on the

part of the appellant as well as the other accused causing delay in

concluding the trial. It is therefore submitted that no case is made

out to exempt the appellant from appearing before the learned Trial

Court.

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5.3 Now, so far as the reliance placed by the learned counsel

appearing on behalf of the appellant upon the decisions of this

Court in Bhaskar Industries Ltd. (supra) and Rameshwar Yadav

(supra) is concerned, it is submitted by the learned ASG that the

said decisions shall not be applicable to the facts of the case on

hand looking to the graveness and seriousness of the offences

involved. It is submitted that in Bhaskar Industries Ltd. (supra),

it was a case for the offence under Section 138 of the Negotiable

Instruments Act and in Rameshwar Yadav (supra), it was a case

for the offences under Section 498­A IPC and Section 4 of the

Dowry Prohibition Act. It is submitted that, in the present case, the

allegations against the appellant are for the offences punishable

under Sections 120­B read with Sections 420 and 409 IPC and

Sections 9, 12, 13(2) read with Sections 13(1)(c) and (d) of the

Prevention of Corruption Act. Therefore, it is prayed to dismiss the

present appeal.

6. Heard learned Counsel appearing on behalf of the respective

parties at length. At the outset, it is required to be noted that the

appellant is required to appear before the learned Trial Court on
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every Friday and the appellant as such is appearing before the

learned Trial Court on each and every Friday since 2013. Nothing

is on record that at any point of time the appellant has tried to

delay the trial. The appellant is represented through his counsel.

The appellant is a permanent resident of Delhi. He is the Director

on the Boards of several companies. The distance between Delhi

and Hyderabad is approximately 1500 kms. Therefore, the

appellant sought for exemption from personal appearance before

the learned Trial Court on each and every Friday and submitted the

application under Section 205 Cr.P.C. and submitted that on all

dates of adjournments, his counsel Sri Bharadwaj Reddy shall

appear and no adjournment shall be asked for on his behalf. In

the cases of Bhaskar Industries Ltd. (supra) and Rameshwar

Yadav (supra), this Court had the occasion to consider the scope

and ambit of the application under Section 205 Cr.P.C. In the case

of Bhaskar Industries Ltd. (supra), this Court has observed that if

a Court is satisfied that in the interest of justice the personal

attendance of an accused before it need not be insisted on, then the

court has the power to dispense with the attendance of the accused.
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It is further observed by this Court in the aforesaid decision that if

a court feels that insisting on the personal attendance of an

accused in a peculiar case would be too harsh on account of a

variety of reasons, the court can grant relief to such an accused in

the matter of facing the prosecution proceedings. It is observed

and held by this Court in the aforesaid decision that the normal

rule is that the evidence shall be taken in the presence of the

accused. However, even in the absence of the accused, such

evidence can be taken but then his counsel must be present in the

court, provided he has been granted exemption from attending the

court. In Paragraphs 14, 17, 18 and 19, this Court has observed

and held as under:

“14. The normal rule is that the evidence shall be
taken in the presence of the accused. However, even
in the absence of the accused such evidence can be
taken but then his counsel must be present in the
court, provided he has been granted exemption from
attending the court. The concern of the criminal
court should primarily be the administration of
criminal justice. For that purpose the proceedings of
the court in the case should register progress.

Presence of the accused in the court is not for
marking his attendance just for the sake of seeing
him in the court. It is to enable the court to proceed
with the trial. If the progress of the trial can be
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achieved even in the absence of the accused the
court can certainly take into account the magnitude
of the sufferings which a particular accused person
may have to bear with in order to make himself
present in the court in that particular case.

17. Thus, in appropriate cases the Magistrate
can allow an 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.

18. A question could legitimately be asked —
what might happen if the counsel engaged by the
accused (whose personal appearance is dispensed
with) does not appear or that the counsel does not
cooperate in proceeding with the case? We may
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point out that the legislature has taken care of such
eventualities. Section 205(2) says that the
Magistrate can in his discretion direct the personal
attendance of the accused at any stage of the
proceedings. The last limb of Section 317(1) confers
a discretion on the Magistrate to direct the personal
attendance of the accused at any subsequent stage
of the proceedings. He can even resort to other steps
for enforcing such attendance.

19. 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.”
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It is true that in the aforesaid two cases before this Court, the

offences alleged were less serious offences than alleged in the

present case. However, the principles for grant of exemption as

observed by this Court in the case of Bhaskar Industries Ltd.

(supra) can be made applicable to the facts of the case on hand also

and the appellant can be granted the exemption on certain

conditions and on filing an undertaking by the appellant, by which

the interest of justice can be protected and grant of exemption may

not ultimately affect the conclusion of the trial at the earliest. At

this stage, it is required to be noted that nothing is on record that,

at any point of time, any effort has been made by the appellant to

stall/delay the trial. At this stage, it is required to be noted that in

case of other two co­accused in cases arising of the same FIR, the

applications for exemption on the very same grounds have been

allowed – one by the High Court and another by the learned Trial

Court.

7. In view of the above and for the reasons stated above and

considering the facts and circumstances of the case, the present

appeal is allowed. The impugned Judgment and order passed by
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the High Court as well as that of the learned Trial Court rejecting

the application submitted by the appellant under Section 205

Cr.P.C. are hereby quashed and set aside and consequently the

application submitted by the appellant to dispense with his

appearance before the learned Trial Court on all dates of

adjournments and permitting his counsel Sri Bharadwaj Reddy to

appear on his behalf is herby allowed on the following conditions:

(1) That the appellant shall give an undertaking to the learned

Trial Court that he would not dispute his identity in the case

and that Sri Bharadwaj Reddy­advocate who is permitted to

represent the appellant, 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 the evidence in his absence

and that no adjournment shall be asked for on behalf of the

appellant and/or his advocate Sri Bharadwaj Reddy;

(2) That the appellant shall appear before the learned Trial Court

for the purpose of framing of the charges and also on other

hearing dates whenever the learned Trial Curt insists for his

appearance;

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(3) If there is any failure on the part of the advocate Sri

Bharadwaj Reddy, who is to represent the appellant, either to

appear before the learned Trial Court on each adjournment

and/or any adjournment is sought on behalf of the appellant

and/or if the learned Trial Court is of the opinion that the

appellant and/or his advocate is trying to delay the trial, in

that case, it would be open for the learned Trial Court to

exercise its powers under Section 205 (2) Cr.P.C. and direct

the appearance of the appellant on each and every date of

adjournment.

The present appeal is disposed of in the aforesaid terms.

………………………..J.

(ASHOK BHUSHAN)

…………………………..J.

(M. R. SHAH)

New Delhi,
December 16, 2019.



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