PAL CHANDER GUPTA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THROUGH this petition under section 482 of the Code of Criminal Procedure, somewhat a sad state of affairs is revealed. A complaint against the petitioner, under section 193, Indian Penal Code is pending in the Court of Shri G.S. Dhiman, Judicial Magistrate 1st class, Ferozepore, since October, 1974. After nearly 81/4 years of its institution even a charge has not been framed against the petitioner. Presumably he has been made to appear as the accused for a number of years. Now the petitioner has the opportunity of proceeding to Bahrein as the askance of his son who has provided him and the petitioner's wife two return air tickets valid for three months. The petitioner has seemingly completed all formalities with regard to his passport, visa and other matters. It is in these circumstances that the petitioner made an application before the learned Judicial Magistrate seeking dispensation of his personal appearance in Court and in his stead his lawyer Shri A.K. Joshi's appearance to satisfy the demands of the legal procedure. The request was declined by the learned Magistrate which has given occasion to the petitioner to approach this Court. Though the petition is styled as one under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, yet this Court has the revisional power under the Code of Criminal Procedure even in the first instance so as to grant adequate relief, if it otherwise falls to be granted.

(2.) THE purpose of the visit of the petitioner, as stated at the bar is purely for a holiday to be with his son who is posted, as a Chartered Accountant in Bahrein. The learned Magistrate has declined the prayer of the petitioner solely on the ground that if thus permitted, he would go beyond the jurisdiction of the Court and it would be difficult to procure his attendance for the disposal of the case. The learned Magistrate has also doubted that the petitioner might abscond. He further was of the view that evidence of the prosecution witnesses was being recorded which presumably is of the pre -charge stage and the presence of the petitioner was necessary. All these difficulties, as expressed by the learned trial Magistrate, were not insurmountable. The mere fact that the case as been pending since 1974 is no credit to the Court and the petitioner at a discredit by lapse of time. Section 205 of the Code of Criminal Procedure permits exemption from personal appearance to the accused and in his place a counsel to appear. In the same strain section 317 of the aforesaid Code in which the discretion is left with the Court to exempt the personal appearance of the accused at any stage of the proceedings. Thus in the circumstances, it seems to me that the discretion exercised by the learned. Magistrate was improper and not in consonance with the interest of justice. Thus allowing this petition, I order as under : -