The Supreme Court recently quashed a magistrate’s order refusing to dispense with the personal appearance of the accused who live thousands of miles away from the trial court, in a Section 498A case filed by a lady.
The husband, in-laws and other relatives were arrayed as accused by a lady before a magistrate court in Patna. Finding a prima facie case under Section 498A and Section 4 of the Dowry Prohibition Act, the court summoned the accused. Applications filed by the accused for recall of nonbailable warrant and dispensing with their physical appearance in the case were rejected by the Magistrate. The reasons for rejection cited by the magistrate were the following,
- Petitioners appear to be hale and hearty and are not suffering from any type of disease which may be an impediment in appearing before the court.
- Nature of offences requires that accused-petitioners and also the complainant should be present before the court preferably on each and every date expecting good sense prevails upon them.
- Their appearance is also desirable for the purpose of conciliation since the very enactment of Section 498A of IPC and Dowry Prohibition Act primarily meant for the restoration of conjugal harmony.
They approached the Patna High Court, but in vain, as it dismissed the application taking a new ground that a prayer for exemption from personal appearance under Section 205 CrPC can only be made at the stage of first appearance of the accused.
The bench comprising of Justice AK Sikri and Justice Ashok Bhushan observed that sufficient grounds were made out by the accused for granting exemption from personal appearance of the appellants in the trial. “The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms,” the bench observed.
The bench examined the grounds on which the magistrate rejected their application seeking exemption from personal appearance and observed: “First reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be an impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable. With regard to this ground it is sufficient to notice that application under Section 482 CrPC was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present appellants, thus, were not pressing application under Section 482 CrPC for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application.”
The court also observed that the high court also made a factually incorrect observation that the accused has filed an application under Section 205 CrPC at a subsequent stage after appearing before the court.