In CRR 3051 of 2022-CAL HC- Application u/s 205 CrPC cannot be rejected on plea that accused has alternative remedy u/s 317, clarifies Calcutta HC
Justice Bibek Chaudhuri [05-12-2022]

Read Order: Shiv Siddhant Narayan Kaul v. Inslovency and Bankruptcy Board of India 

LE Correspondent

Kolkata, January 2, 2023: While referring to Section 205 of the Code of Criminal Procedure, the Calcutta High Court has opined that it is the foremost duty of the Trial court to examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence.

The Bench of Justice Bibek Chaudhuri was considering a case where the petitioner was impleaded as an accused in a complaint under Section 236 of the Insolvency and Bankruptcy Code (IBC) alleging commission of offence by him and other accused persons punishable under Section 70(1)(b) r/w Sections 19(1) and 34(3). The said complaint has been pending before the Trial Judge for trial and disposal.

In the said proceeding filed by the Deputy General Manager, Insolvency and Bankruptcy Board of India, the petitioner filed an application under Section 205 of the CrPC for exempting him from personally appearing before the trial court on each and every date of the said criminal proceeding.

The petitioner, in this case, had been  working as a Managing Director of a company which deals with industrial boilers.  By an order, the Trial judge came to a finding that during the span of December, 2021 to August, 2022, the petitioner attended four meetings of various business organizations and two of such meetings were conducted through virtual mode. 

It was also noticed that the office of the petitioner is situated at Kolkata therefore, he was pleased to reject petitioner’s application for dispensing with personal appearance and directed him to remain present personally during trial of the case. The petitioner had approached the High Court by filing a Revision Petition.

The Bench took note of the fact that petitioner along with other accused persons are facing trial for committing offence punishable under Section 70(1)(b) and Sections 19(1) and 34(3) of IBC and it was also alleged that the petitioner committed offence under Sections 19(1) and 34(3) of the IBC by not extending, assistance and cooperation to the official liquidator

Section 70(1)(b) is a penal provision for misconduct in the course of corporate insolvency resolution process (CIR), the Bench added.

The High Court was of the opinion that no useful purpose would be served by requiring personal attendance of the petitioner because the fate of the trial would depend on the complainant's success in establishing the charge against the accused persons beyond any shadow of doubt. 

Considering the fact that the allegation made against the accused is not of such nature where personal attendance of the accused and his identification is absolutely necessary, the Bench observed that the Trial judge failed to consider that as the Managing Director, he requires to visit other places immediately and he is also the Honorary Consul General of the Republic of South Korea.

Referring to section Section 317 CrPC which shows that inquiry and trial of a criminal case may be held in absence of an accused where the Trial Judge is satisfied with personal attendance of the accused is not necessary in the interest of justice or that the accused persistently disturbed the proceedings in the court, the Bench said, “An application under Section 205 of the Cr.P.C cannot be rejected on the plea that the accused has alternative remedy Section 317 of the Cr.P.C. The learned trial court also failed to consider that provision under Section 205 of the Cr.P.C is to be liberally construed.”

Thus, allowing the revision as well as the petitioner’s application u/s 205 of the CrPC, the Bench set aside the Trial Court’s order.