Patna High Court – Orders
Bimal Kumar vs The State Of Bihar on 28 July, 2026
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.214 of 2023
Arising Out of PS. Case No.-169 Year-2020 Thana- GHOSI District- Jehanabad
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BIMAL KUMAR Son Nageshwar Singh RESIDENT OF VILLAGE-
KHAIRAUTI MATH POST-KORMA PS-GHOSHI DISTT-JEHANABAD
... ... Petitioner/s
Versus
1. The State of Bihar
2. Rahul Kumar son of Kamta Prasad Singh Village- Khirauti Math Po- Korma
Ps- Ghosi Dist- Jehanabad
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjeev Kumar, Advocate
Mr. Aman Kumar, Advocate
Ms. Preeti, Advocate
For the State : Mr. Nand Kishore Prasad, A.P.P.
For the O.P. No.2 : Mr. Ashok Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
13 28-07-2026
Heard learned counsel for the parties.
2. The present criminal revision petition is directed
against the order dated 21.01.2023 passed by the learned
A.C.J.M.-IV, Jehanabad in connection with Ghosi P.S. Case
No. 169 of 2020 by which the concerned court has dismissed
the petition filed by the petitioner under Section 205 of the
Code of Criminal Procedure, 1973.
3. Briefly stated, the facts of the case are that
respondent no. 2 filed a written petition on 03.05.2020 before
the S.H.O., Ghosi police station against the petitioner and
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others. On the basis of the said written petition, Ghosi P.S.
Case No. 169 of 2020 dated 03.05.2020 was instituted under
Sections 147, 149, 323, 341, 325, 452 and 379 of the Indian
Penal Code against the petitioner and others. After
submission of the charge-sheet, the learned trial court took
cognizance under Sections 188, 341, 323, 336, 337, 504 and
34 of the I.P.C. and summons were issued against the
petitioner and the other accused persons.
4. The prosecution case, in brief, is that on
03.05.2020 at about 4:30 P.M., the petitioner and others
allegedly entered into the house of the informant, Rahul
Kumar (respondent no. 2), assaulted the informant and his
family members with bricks, stones, danda and rod,
committed loot and took away his mobile phone and broke
the door of his house. On the basis of the written application
of the informant, the aforesaid F.I.R. came to be registered.
5. Learned counsel for the petitioner submits that
being aggrieved by the order dated 21.01.2023, the present
criminal revision has been preferred. It is submitted that the
impugned order reflects that the petition filed under Section
205 of the Code of Criminal Procedure has been rejected
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solely on the ground that the petitioner has neither appeared
before the court nor has he been granted bail by the trial
court. Learned counsel for the petitioner has submitted that
the privilege provided under Section 205 of the Cr.P.C. can
be granted and the same cannot be extinguished merely
because the petitioner has not been granted bail. It has been
submitted that the benefit under Section 205 of the Cr.P.C. is
not dependent upon the grant of bail. Learned counsel has
further submitted that Section 205 of the Cr.P.C. provides
that the Magistrate, inquiring into or trying the case, may, in
his discretion, at any stage of the proceeding, dispense with
the personal attendance of the accused and, if necessary,
direct his personal attendance and enforce such attendance in
the manner hereinbefore provided. It has further been
submitted that the principle that exemption from personal
appearance is dependent upon prior grant of bail is wholly
misconceived. The very purpose of the statutory provision
contained in Section 205 of the Cr.P.C. is to relieve the
accused from unnecessary personal attendance where the
interest of justice so permits, while preserving the power of
the Magistrate to insist upon the personal appearance of the
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accused whenever such appearance is considered necessary.
Learned counsel has further submitted that, while passing the
impugned order dated 21.01.2023, the learned trial court
recorded that the petitioner had neither appeared before the
court nor had he been granted bail and, on the aforesaid
reasoning, held that the provision under Section 205 of the
Cr.P.C. could not be invoked without the petitioner first
obtaining bail from the concerned court. Learned counsel
further submits that the observation made by the trial court
that application under Section 205 of the Cr.P.C. cannot be
entertained in the absence of grant of bail, is neither
sustainable nor tenable in the light of the statutory provision
contained under Section 205 of the Cr.P.C. It is further
submitted that the learned trial court also failed to consider
that the petitioner is serving in the Border Security Force and
is holding a transferable post. At the time of filing the
petition under Section 205 Cr.P.C., the petitioner was posted
at Kolkata and, because of the transferable nature of his
employment, it is not feasible for him to remain personally
present before the trial court on each and every date of
hearing. It is further submitted that the petitioner is always
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ready and willing to appear before the learned trial court,
whenever his personal presence is specifically required.
6. Learned counsel further submits that in Bhaskar
Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. and
Ors., reported in (2001) 7 SCC 401, the Hon’ble Supreme
Court has held that where personal attendance of an accused
would result in enormous hardship and unnecessary expense,
the court may dispense with such attendance either
throughout the proceedings or at any particular stage, subject
to an undertaking by the accused that he would not dispute
his identity, would be represented through counsel and would
have no objection if evidence is recorded in his absence. The
principal concern of the court is the proper administration of
criminal justice and ensuring that the proceedings progress
without unnecessary delay.
7. Learned counsel further submits that the Hon’ble
Patna High Court in Paras 8, 9 and 14 of the judgment
rendered in the case of Manish Gai vs. State of Bihar,
reported in 2007 (1) PLJR 824 has observed as follows:-
“8. The legislature
contemplated speedy trial and as
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such in past rarely occasion has
arisen for people to seek exemption
from personal appearance. Now a
day criminal trial are notoriously
slow. It takes five or decade for a
trial to conclude. If courts were to
insist that on each and every date i.e.
virtually every fifteen days an
accused must appear from Katni in
the State of Madhya Pradesh to
Patna and attend his court and that
too for no purpose, except filing
attendance it would be only travesty
of justice. To my mind, to undertake
journey from Katni to Patna so
frequently would be agreater
punishment than what he could have
punished in the case. Power to refuse
permission under section 205 Cr.P.C.
should not be used as a substitute for
ultimate punishment which could be
awarded. Personal appearance in
course of trial is for a purpose and
not only for “fun of it”. If no purpose
is to be served by personal
appearance day after day then it
should be dispensed with. The
magistrate still retains power to
order for personal appearance
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whenever necessary.
9. It has now been settled
by series of decisions of this court
and the Apex Court that where a
person residing out of place where
the trial is being conducted, by
virtue of his business or otherwise is
busy cannot continuously appear
every fifteen days or every month he
should be exempted from
appearance before the trial court till
such time his personal appearance is
necessary. I may clarify that there is
no impediment for the trial court to
continue in absence of an accused
person because if he has been
exempted on his own application
under section 205 Cr.P.C. then
evidence recorded in presence of his
lawyer but in his absence cannot be
challenged as wrongly recorded.
That evidence would bind the
accused notwithstanding it having
been recorded in his absence. In my
view what the courts have to see is
whether absence of the petitioner
would delay the trial in any manner
and not otherwise.
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14. Let Registrar General
of this Court circulate a copy of this
order to Registrar of Civil Courts in
the State for guidelines of judicial
officers in future so that this question
is accordingly dealt by courts
without this court wasting its time
again and again.”
8. Learned counsel for the petitioner submits that in
the facts and circumstances of the present case as well as in
view of the aforesaid decisions, the impugned order dated
21.01.2023 passed by the learned trial court is not justified
and legal and is fit to be set aside.
9. On the other hand, learned counsel appearing on
behalf of opposite party no. 2 submits that the impugned
order passed by the learned trial court is quite legal, justified
and based upon the materials available on record and,
therefore, calls for no interference. Learned counsel for the
State has also supported the impugned order and submits that
no interference is warranted.
10. After going through the materials available on
record, it is necessary to take note of the provisions under
Sections 205 and 317 of the Code of Criminal Procedure,
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which are reproduced hereinbelow:-
“205. Magistrate may
dispense with personal attendance
of accused.
(1) Whenever a Magistrate
issues a summons, he may, if he sees
reason so to do, dispense with the
personal attendance of the accused
and permit him to appear by his
pleader.
(2) But the Magistrate
inquiring into or trying the case may,
in his discretion, at any stage of the
proceedings, direct the personal
attendance of the accused, and, if
necessary, enforce such attendance
in the manner hereinbefore provided.
317. Provision for
inquiries and trial being held in
the absence of accused in certain
cases.
(1) At any stage of an
inquiry or trial under this Code, if
the Judge or Magistrate is satisfied,
for reasons to be recorded, that the
personal attendance of the accused
before the Court is not necessary in
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accused persistently disturbs the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such inquiry or trial in his absence,
and may, at any subsequent stage of
the proceedings, direct the personal
attendance of such accused.
(2) If the accused in any
such case is not represented by a
pleader, or if the Judge or
Magistrate considers his personal
attendance necessary, he may, if he
thinks fit and for reasons to be
recorded by him, either adjourn such
inquiry or trial, or order that the
case of such accused be taken up or
tried separately.
11. From a conjoint reading of the aforesaid
provisions, it is manifest that the personal attendance of an
accused may be dispensed with either under Section 205
Cr.P.C. or under Section 317 Cr.P.C. While Section 205
empowers the Magistrate to exempt an accused from
personal appearance from the very commencement of the
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trial. Thus, an accused may seek exemption from personal
appearance from the initial stage itself, including at the stage
of first appearance, by satisfying the court with proper and
cogent reasons. The power under Section 205 Cr.P.C. is
available only to the Magistrate, whereas the power under
Section 317 Cr.P.C. may be exercised both by a Magistrate
and by a Court of Session.
12. Further, Section 273 Cr.P.C. lays down the
general rule that all evidence during trial shall be taken in the
presence of the accused. However, the Code itself carves out
exceptions under Sections 205 and 317 Cr.P.C., conferring
discretion upon the court to exempt an accused from personal
appearance in appropriate cases. It is well settled that
exemption from personal appearance is not a matter of right
but is subject to the judicial discretion of the court, which is
required to be exercised judiciously.
13.In Sharif Ahmed and Anr. vs. State of U.P.,
reported in 2024 INSC 363, the Hon’ble Supreme Court, in
paragraph 47, has observed as follows:
“47. Further, the
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for granting exemption from personal
appearance prior to obtaining bail, is
not correct, as the power to grant
exemption from personal appearance
under the Code should not be read in
a restrictive manner as applicable
only after the accused has been
granted bail. This Court in Maneka
Sanjay Gandhi and Another v. Rani
Jethmalani held that the power to
grant exemption from personal
appearance should be exercised
liberally, when facts and
circumstances require such
exemption. Section 205 states that the
Magistrate, exercising his discretion,
may dispense with the personal
attendance of the accused while
issuing summons, and allow them to
appear through their pleader. While
provisions of the Code are
considered to be exhaustive, cases
arise where the Code is silent and the
court has to make such order as the
ends of justice require. In such cases,
the criminal court must act on the
principle that every procedure which
is just and fair is understood as
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expressly or impliedly prohibited by
law.”
14. It has been observed in the case of Sharif
Ahmad (supra), in para 47, that there is no provision for
granting exemption from personal appearance prior to
obtaining bail, is not correct, as the power to grant exemption
from personal appearance under the Code should not be read
in a restrictive manner as applicable only after the accused
has been granted bail. In the light of the observation made in
Sharif Ahmad (supra), it is crystal clear that the very
contention of learned counsel for the petitioner is quite
justified that the observation made by the trial court that
application under Section 205 of the Cr.P.C. cannot be
entertained in the absence of grant of bail, is neither
sustainable nor tenable in the light of the statutory provision
contained under Section 205 of the Cr.P.C.
15. In the present case, the specific contention of
the learned counsel for the petitioner is that the petitioner is
serving in the Border Security Force and is holding a
transferable post. It has been submitted that he has been
transferred from Kolkata to Jammu and thereafter to Siliguri
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and that all these places of posting are situated at a
considerable distance from the jurisdictional court. In view
of the aforesaid facts and circumstances, the learned trial
court ought to have considered the petitioner’s request for
exemption from personal appearance in the light of the
settled legal principles governing Section 205 Cr.P.C. At the
same time, the learned trial court would always be at liberty
to direct the personal appearance of the petitioner at any
stage of the proceedings whenever his presence is found to
be necessary. Hence, the contention of learned counsel for
the petitioner is quite justified and legal in the light of given
facts and circumstances of the case.
16. In view of the aforesaid discussions, this Court
is of the considered opinion that the impugned order dated
21.01.2023 passed by the learned Additional Chief Judicial
Magistrate-IV, Jehanabad is not sustainable in law and is
accordingly set aside.
17. Accordingly, the present revision application is
allowed with the following conditions :
(i) That the petitioner shall give an undertaking to
the learned trial court that he would not dispute his identity
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represent the petitioner, would appear before the learned trial
court on his behalf on each and every date of hearing and that
he shall not object recording of the evidence in his absence
and that no adjournment shall be asked for on behalf of the
petitioner and/or his Advocate.
(ii) That the petitioner shall appear before the
learned trial court for the purpose of framing of the charges
and also on other hearing dates whenever the learned trial
court insists for his appearance.
(iii) If there is any failure on the part of the
Advocate, who is to represent the petitioner, either to appear
before the learned trial court on each adjournment and/or any
adjournment is sought on behalf of the petitioner and/or if the
learned trial court is of the opinion that the petitioner and/or
his advocate is trying to delay the trial, in that case, it would
be open for the learned trial court to exercise its powers
under Section 205(2) CrPC and direct the appearance of the
petitioners on each and every date of adjournment.
18. The learned trial court is directed to take steps
for expeditious disposal of the case, as far as practicable.
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19. Pending application, if any, stands disposed of.
20. Let the trial court records be transmitted back
forthwith.
(Alok Kumar Pandey, J)
Nilmani/-
U T
