ANIL KUMAR Vs. STATE OF H P

JUDGEMENT

(1.) The accused/petitioner herein (for short "the accused') alongwith other accused, is, facing trial before the learned Special Judge II Solan, H.P., for, his committing an offence punishable under Section 20, of, the Narcotic Drugs and Psychotropic Substances Act, 1985. Upon the accused preferring an application under Section 439 Cr.P.C, he was granted bail, by the learned trial Judge. The prosecution has led into the witness box, all witnesses', except one. At the stage, when the last prosecution witness was to be led into the witness box, the accused/petitioner herein, by preferring an application, cast, under Section 205 Cr.P.C, provisions whereof stand extracted hereinafter, sought his exemption from personal appearance. The ground for the apposite exemption, stands, comprised in the factum of his being bed ridden, hence, being disabled to record his appearance before the learned Court concerned. However, the learned trial Court declined the averred relief, and, also proceeded, to, draw proceedings, against, the accused/petitioner herein, under Section 446 Cr.P.C, besides, also ordered for issuance of NBWs, for ensuring the presence, of, the absentee accused/petitioner herein, before it, on 10.5.2018. Section 205 in The Code Of Criminal Procedure, 1973 205. Magistrate may dispense with personal attendance of accused.

(2.) On 4.4.2018, the last prosecution witness, was available for his deposition being recorded, and, after declining of relief vis-a-vis, the, petitioner upon his application, cast, under Section 205 Cr.P.C, the learned trial Court concerned rather discharged PW Durga Dutt Sharma. Even if the learned trial Court, was not, satisfied with the ground, as, meted in the application aforesaid, wherein, the petitioner, sought, his exemption from personal appearance, on 4.4.2018, yet, it was grossly improper for the learned trial Court, to, thereafter proceed to initiate proceedings under Section 446 Cr.P.C, and, also, to, order for issuance, upon him, of NBWs returnable, for 10.5.2018. The reason for making the aforesaid conclusion arises, from (a) with the accused being represented by counsel, and, his prior to, the pronouncement of the order of 4.4.208 rather consistently recording his appearance before, the trial Court concerned (b) AND the proceedings under Section 313 Cr.P.C yet remaining to be drawn, in proceedings whereof, the appearance of the accused before the trial Court concerned, was rather imperative, also, obviously when the personal appearance, of, the accused before the trial Court concerned was peremptory , only, at the stage of pronouncement of a verdict of conviction upon him and conseqeunt imposition , of, sentence upon him. (c) reiteredatedly, when, both the aforesaid stages remained un-arrived, it appears, that learned trial Court concerned, has committed , a, gross error, to, despite the accused being represented, by Counsel, hence proceed to draw proceedings, under Section 446 Cr.P.C, especially when prior thereto there was no apt derelictions, on, the part of the accused nor as afore-stated his personal appearance, was necessary nor also with his being duly represented by counsel, it was yet open, for the latter, to, proceed to cross-examine, the, last prosecution witness.

(3.) Moreso, It was also inappropriate, for the learned trial Court, to, proceed to discharge, the PW aforesaid, his being the last prosecution witness, given want, of, personal appearance of the accused before him, conspicuously when his counsel, was rather enabled to cross examine, the PW aforesaid.