Bimal Kumar vs The State Of Bihar on 28 July, 2026

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    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
                      ======================================================
                      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

    SPONSORED

    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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    the interests of justice, or that the
    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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    proceedings, Section 317 applies to the stage of inquiry or

    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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    observation 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. 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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    permissible till it is shown to be
    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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    in the case and that the Advocate who is permitted to

    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
     



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