# Santosh Chauhan and others v. State Of U.P. and another

- **Citation:** (2011) 1 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-24
- **Case number:** Crl. Misc. Application No. 4761 of 2011
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-chauhan-and-others-v-state-of-u-p-and-another-41844
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 205Exumption from personal appearancesale discretion of magistrate-to consider
whether or not the trail affected in
absence of accused-No direction can be
issued
by
High
Court-Application
dismissed.

Held: Para 7

Therefore,
the
Magistrate
while
considering an application under section
205 of the Code, has to see whether or
not any useful purpose would be served
by requiring the personal attendance of
the accused in the court. He is further
required to see whether or not the
progress of the trial is likely to be
hampered on account of absence of the
accused. As held in the case of Bhaskar
Industries (supra), the discretion under
section 205 of the Code should be
exercised in a judicious manner and the
personal presence of the accused should
be required only when the trial cannot
proceed further without the presence of
the accused. If the trial can be held
conveniently in absence of the accused,
it would be just and expedient to
exercise the discretion in favour of the
accused and dispense with his personal
attendance
in
the
court.
1 All] Santosh Chauhan and others V. State of U.P. and another
379
Case law discussed:
(2001) 7 SCC 401; (2001) 2 SCC 772.

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
land and commercial one particularly in
the circumstances without there being any
proof on record that Dharam Kanta and
Atta Chakki were existed before the date
of execution of sale deed or on the date of
execution of sale deed. Further without
taking into consideration the economic
activity and prevailing rent etc. in the
vicinity of land. No provision under the
Stamp Act could be shown to the Court
by
the
learned
Standing
Counsel
containing that the stamp duty may also
be charged on the future use of the land or
the purchaser can not use agricultural land
for any other purposes except the
agriculture in future.

15. In these circumstances I am of
the view that the future use of the land is
irrelevant for the determination of the
market value and payment of stamp duty.
The valuation of the land has to be
assessed on the basis of existing circle
rate/market value of particular category of
the land on the date of execution of sale
deed and its registration considering the
other criteria as discussed above, if any
deviation is there.

16. In view of the foregoing
discussions I am of the opinion that
impugned orders are unsustainable in the
eye of law and deserves to be quashed.

17. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 28.09.1993 and 26.06.1996
are hereby quashed.

18. It is also provided that the
security if any furnished by the petitioner
pursuant to the order dated 11.09.1996
passed by this Court be released.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Crl. Misc. Application No. 4761 of 2011

Santosh Chauhan and others ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner :
Sri M.S. Chauhan

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section 205Exumption from personal appearancesale discretion of magistrate-to consider
whether or not the trail affected in
absence of accused-No direction can be
issued
by
High
Court-Application
dismissed.

Held: Para 7

Therefore,
the
Magistrate
while
considering an application under section
205 of the Code, has to see whether or
not any useful purpose would be served
by requiring the personal attendance of
the accused in the court. He is further
required to see whether or not the
progress of the trial is likely to be
hampered on account of absence of the
accused. As held in the case of Bhaskar
Industries (supra), the discretion under
section 205 of the Code should be
exercised in a judicious manner and the
personal presence of the accused should
be required only when the trial cannot
proceed further without the presence of
the accused. If the trial can be held
conveniently in absence of the accused,
it would be just and expedient to
exercise the discretion in favour of the
accused and dispense with his personal
attendance
in
the
court.
1 All] Santosh Chauhan and others V. State of U.P. and another
379
Case law discussed:
(2001) 7 SCC 401; (2001) 2 SCC 772.

(Delivered by Hon'ble Shri Kant Tripathi, J.)

1. Heard the learned counsel for the
applicants and the learned AGA and
perused the record.

2. Keeping in view the facts of the
case, it appears that all the offences are
bailable.

3. The learned Magistrate, keeping
in view the materials on record, arrived at
the conclusion that there were sufficient
material on record to summon the
accused. The finding of the learned
Magistrate is based on proper appraisal of
the relevant material. The petition has no
merit and is liable to be dismissed.

4. The learned counsel for the
applicants submitted that the personal
attendance of the applicants in the court
may be directed to be exempted. This
type of direction cannot be issued by
this Court in exercise of inherent power,
however, the learned Magistrate has
power under section 205 Cr.P.C. to
grant exemption from the personal
attendance of the accused and in
appropriate cases that power should be
exercised so that the accused persons,
particularly, where a large number of
persons have been made accused, are
not unnecessarily harassed.

5. In the case of Bhaskar Industries
Ltd Vs. Bhiwani Denim and Apparels
Ltd.[ (2001) 7 SCC 401, the Apex Court
has propounded the principles regarding
the ambit and scope of section 205 of the
Code. Paragraph 19 of the judgement
seems to be relevant, which is as follows:

"19.......It is within the powers of a
magistrate and in his judicial discretion
to dispense with the personal appearance
of an accused either throughout or at any
particular stage of such proceedings in a
summons case, if the magistrate finds that
insistence of his personal presence would
itself
inflict
enormous
suffering
or
tribulations to him, and the comparative
advantage would be less. Such discretion
need be exercised only in rare instances
where due to the far distance at which the
accused resides or carries on business or
on account of any physical or other good
reasons
the
magistrate
feels
that
dispensing with the personal attendance
of the accused would only be in the
interests
of
justice.
However,
the
magistrate who grants such benefit to the
accused
must
take
the
precautions
enumerated above, as a matter of course."

6. The aforesaid principles have
been followed with approval in the
subsequent case of TGN Kumar v State of
Kerala, (2011) 2 SCC 772. Paragraphs 8
& 10 of the judgement rendered in TGN
Kumar (supra) case seem to be relevant,
which are reproduced as follows:

"8. The Section confers a discretion
on the court to exempt an accused from
personal appearance till such time his
appearance is considered by the court to
be not necessary during the trial. It is
manifest from a plain reading of the
provision that while considering an
application under Section 205 of the
Code, the Magistrate has to bear in mind
the nature of the case as also the conduct
of the person summoned. He shall
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
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
hampered on account of his absence.
(See: S.V. Muzumdar & Ors. Vs. Gujarat
State Fertilizer Co. Ltd. & Anr.7) .
Therefore, the satisfaction whether or not
an accused deserves to be exempted from
personal attendance has to be of the
Magistrate, who is the master of the court
in so far as the progress of the trial is
concerned and none else.

.........

10. We respectfully concur with
the above guidelines and while reaffirming the same, we would add that
the order of the Magistrate should be
such
which
does
not
result
in
unnecessary harassment to the accused
and at the same time does not cause
any prejudice to the complainant. The
Court must ensure that the exemption
from personal appearance granted to
an accused is not abused to delay the
trial."

7. Therefore, the Magistrate while
considering an application under section
205 of the Code, has to see whether or
not any useful purpose would be served
by requiring the personal attendance of
the accused in the court. He is further
required to see whether or not the
progress of the trial is likely to be
hampered on account of absence of the
accused. As held in the case of Bhaskar
Industries (supra), the discretion under
section 205 of the Code should be
exercised in a judicious manner and the
personal presence of the accused should
be required only when the trial cannot
proceed further without the presence of
the accused. If the trial can be held
conveniently in absence of the accused,
it would be just and expedient to
exercise the discretion in favour of the
accused and dispense with his personal
attendance in the court.

8. In view of the aforesaid, it will
be open to the applicants to move an
application under section 205 of the
Code for dispensing with their personal
attendance in the court. If any such
application is moved, the same may be
considered
and
disposed
of
in
accordance with the observations made
herein before.

9. The petition is, therefore,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHAABD 0.3.03.2011

BEFORE
THE HON'BLE F.I.REBELLO,C.J.
THE HON'BLE VINEET SARAN,J.

Civil Misc. Writ Petition No. 1766 of 2011

Smt. Raj Kumari Singh
 ...Petitioner
Versus
State Of U.P. And Others ...Respondent

Counsel for the Petitioner:
Sri Purendu Kumar Singh
Sri Ajai Shankar Pathak
Sri Umesh Narain Sharma

Respondent Counsel:
C.S.C.

Constitution
of
India-Article
226cancellation of Fair Price Shop Licenseon ground of pendency of criminal
case-earlier
it
was
suspendedsubsequently on ground of hardship of
consumer during period of attachmentcancellation order passed-inspite of
time granted no counter affidavit filedin absence of provisons of suspension
or cancellation of on pendency of
criminal case-order without authority
of law.