PARTHASARATHI Vs. STATE

JUDGEMENT

(1.) This criminal original petition is filed to set aside the order dated 29.8.2013 passed by the learned Special Judge (Prevention of Corruption Act), Pondicherry in Cr. M.P. No. 1019/2013 in Special CC No. 8/2010. This Criminal Revision Case is filed to set aside the Docket order dated 16.12.2013, issuing non bailable warrant against the Petitioner in Special CC No. 8/2010, passed by the learned Special Judge (Prevention of Corruption Act), Pondicherry. The Petitioner is arrayed as A3 in Special CC No. 8/2010 for the offence under Sections 120B read with 420, 468, 471 of IPC and Section 13(2) read with 13(d) of the Prevention of Corruption Act, 1988. The case of the prosecution is that during the year 2007, malpractice was noticed in the examination conducted by the Pondicherry University and marks were deliberately inflated to extend undue favour to the Students. Originally, the Petitioner/A3 and A4, the father of A3 were not shown as accused in the First Information Report. However, in the final report filed by the Respondent on 29.9.2010, A3 and A4 were added as accused along with A1 Karumari Subbarayudu, Professor and A2 N. Balasubramanian, Assistant Professor of the Pondicherry Engineering College. The case was taken on file by the learned Special Judge on 1.7.2010 and summons was issued to the accused. It appears that on 8.11.2010, the counsel filed a memo of appearance for A3 and A4 before the Trial Court. It also appears that before the final report was filed on 29.9.2010. A3 had finished his engineering graduation at Pondicherry and left for UK to pursue his higher studies and therefore, he had no knowledge about the final report filed by the Respondent adding him as an accused.

(2.) In the meanwhile, on 21.4.2011, a petition to quash the proceedings was filed before this Court on behalf of A3 and A4 in Cr. O.P. No. 9895/2011. Pending disposal of the said Criminal Original Petition, appearance of A3 was dispensed with by this court for some time and ultimately the said quash petition came to be dismissed by this court by order dated 24.1.2013. Even during the pendency of the said quash petition, the learned Public Prosecutor appearing before the Special Court filed a petition for issuance of warrant against A3 and it appears that the said petition was kept pending till 21.3.2012. The learned Judge, finding that no proper summons was served on A3 so far, directed issuance of fresh summons to A3 and thereafter, the case was adjourned for the purpose of serving summons to various dates, that is, on 6.6.2013, 24.7.2012, 22.8.2012, 28.9.2012 and 9.11.2012. Thereafter, since the summons was returned Unserved and at the instance of the learned Public Prosecutor who filed a memo for issuance of NBW against A3, the learned Judge issued NBW against A3 on 21.12.2012. The issuance of the said NBW against A3 was challenged by A3 in Cr. R.C. No. 5/2013 and this Court, after hearing both sides and considering the facts and circumstances of the case directed A3 to appear before the Trial Court on or before 15.2.2013 and get the copies of records so as to enable the Court to frame charges. This court, further, observed that in any of the future hearings, if the Petitioner/A3 was unable to appear before the court, he was directed to file an application to dispense with his personal appearance and a discretion was given to the Trial Court to consider the said application. Thereafter, a clarificatory order was passed, setting aside the NBW issued against the Petitioner. Accordingly, all of the accused including A3 appeared before the Trial Court and copies were furnished to them on 15.2.2013. There is no dispute with regard to this fact. On the very next hearing, that is on 27.3.2013, both A3 and A4 appeared before the Trial Court and filed petitions for discharge under Section 239 of Cr.P.C.. On the next hearing date, that is, on 3.4.2013, A4 was present, but however, A3 was absent, since he left for UK for reporting to his employer, since by that time he finished his studies and got employment and availability of leave from his employer became very difficult. Even in the application filed under Section 317 of Cr.P.C. in Cr. M.P. No. 426/2013 on behalf of A3 on 3.4.2013, the said fact has been mentioned and after considering the same, the Trial Court passed an order dispending with the appearance of the Petitioner/A3 on 3.4.2013. Thereafter, the case was adjourned to 10.4.2013 and in the mean while, the discharge petition was numbered as Cr. M.P. No. 425/2013 and the same was pending. Though the Trial Court has passed an order dispensing with the personal appearance of A3 on 3.4.2013, however, dismissed a similar petition filed on behalf of A3 on 10.4.2013 and issued NBW against him in Cr. M.P. No. 465/2013 dated 10.4.2013, which necessitated the Petitioner to move this court in Cr. R.C. 677/2013, challenging the order passed by the Trial Court rejecting the petition filed by the Petitioner filed under Section 317 of Cr.P.C.. This court, by order dated 27.6.2013, considering the submissions made on either side, passed an order recalling NBW issued against the Petitioner/A3 and accordingly, allowed the criminal revision petition in Cr. RC 677/2013. This court further directed the Petitioner to appear before the Trial Court on 12.8.2013 and also directed the Trial Court to pass orders on the petition filed by the accused under Section 239 of Cr.P.C. or to frame charge against the accused under Section 240 of Cr.P.C. on 12.8.2013 or any day within a week. It further taking into consideration that the petitioner is employed in UK and is unable to get frequent leave, directed him to file an application under Section 205 of Cr.P.C. and directed the Trial Court to pass orders considering the case of the Petitioner liberally.

(3.) While so, the Petitioner filed an application under Section 205 of Cr.P.C. in Cr. MP No. 1072/2013, seeking permission of the Trial Court to dispense with the personal appearance of the Petitioner and permit him to appear through his counsel, stating about his employment in UK and also the difficulty in getting leave frequently from his Employer and the danger of his losing job if he frequently applied leave and requested the Court not to insist upon his appearance on all hearings. It is seen that he has also given an undertaking in the said application that he was ready to appear before the Trial Court on the day of framing of charges, on the day of questioning under Section 313 of Cr.P.C. and also on the day of judgment. However, the said petition filed under Section 205 of Cr.P.C. was dismissed by the Trial Court on 16.12.2013 in Cr. M.P. 1072/2013 on the ground that the Petitioner was absent and that there was no representation on his behalf. According to the learned counsel for the Petitioner, since the advocates were boycotting the court, the counsel could not appear on that day.