Delhi H.C : The IT Department had filed a criminal complaint under s. 276C of IT Act, 1961. The petitioners were summoned.

High Court Of Delhi

S.C. Agnihotri & Anr. vs. Assistant Commissioner Of Income Tax

Sections 276C

O.P. Dwivedi, J.

Crl. MM No. 1999 of 2002

19th September, 2002

Counsel Appeared

K.R. Manjani, for the Petitioner : R.K. Sharma, for the Respondent

ORDER

O.P. DWIVEDI, J. :

The IT Department had filed a criminal complaint under s. 276C of IT Act, 1961. The petitioners were summoned. The petitioners appeared in response to summons and they were granted exemption from personal appearance. However, on the next dt. 15th Jan., 2002, the petitioners who are the resident of Faridabad did not come to the Court as they had already been granted exemption. The counsel Mr. K.R. Manjani, advocate through whom the petitioners were exempted from appearance also did not reach the Court in time so the exemption was withdrawn and case was listed for 1st April, 2002, for pre-charge evidence. Later on petitioners moved another application claiming exemption from personal appearance. That application was supported by the affidavits of the counsel for the petitioner wherein it was averred that Mr. K.R. Manjani, advocate the learned counsel for the petitioner, could not reach Court in time as he was busy in High Court but his junior Mr. N.P. Mishra, advocate, appeared in the Court. Yet learned Metropolitan Magistrate rejected the application and declined to grant exemption from personal appearance. Hence, this petition.

2. I have heard learned counsel for the parties and perused the record. It is within the powers/discretion of a magistrate to dispense with the personal appearance of an accused either throughout the trial or at any particular stage of such proceedings in a summon case but this power has to be exercised judiciously. In the case of Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. & Ors. 2001 (6) SCC 339, Hon’ble Supreme Court has dealt with the question of granting exemption from personal appearance particularly in summon trial case. Hon’ble Supreme Court observed that presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court on every date of hearing. When the accused undertakes not to dispute his identity and appears in the Court through its counsel there is no point in insisting upon personal appearance particularly when he belongs to some place outside Delhi. In the present case it is stated before me that Mr. S.C. Agnihotri, petitioner No. 1, is a practising advocate in Faridabad and petitioner No. 2 is housewife. Obviously their presence in the Court on every date will not serve any purpose and will cause great inconvenience to them. The impugned order is not in conformity with the observation made by the Supreme Court in the case of Bhaskar Industries (supra).

3. Accordingly, the impugned order is set aside. The petitioners are exempted from personal attendance unless the learned Metropolitan Magistrate for reasons to be recorded in writing, considers their presence to be necessary for any particular date. The petitioners shall file the requisite undertaking before the learned Metropolitan Magistrate on the next date to the effect that they shall not dispute their identity and counsel shall appear on every date of hearing.

With these directions, Crl. MM 1999/2002 stands disposed of.

[Citation : 259 ITR 24]

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