Poonam Dhwan v. State of Punjab

KULDEEP TIWARI, J. (ORAL)

¶1Fetching grievance from the dismissal order dated 15.11.2023, as became drawn on her application seeking permanent exemption from personal appearance in the trial launched in FIR No.197 dated 05.11.2015, under Sec-tions 420, 465, 467, 471 and 120-B of the IPC, registered at P.S. Sadar Patiala, District Patiala, the petitioner/a sexagenarian U.S. Citizen has instituted the in-stant petition under Section 482 read with Sections 205 and 317 of the Cr.P.C., thus assailing the dismissal order and seeking the exemption (supra). FACTUAL MATRIX

¶2The petitioner has been nominated as one of the accused in the FIR (supra), on the allegations that, she along with her co-accused made false representations before public authorities and also filed false affidavits and particularly forged a Will dated 14.11.1999 for getting the properties of CRM-M-29726-2024 (O&M) 2 the complainant sanctioned in her name along with other accused persons to the tune of crores of rupees, thereby causing loss to the complainant and her minor children. During the course of investigation, the petitioner and her co-accused were declared "Proclaimed Persons/Offenders" owing to their non appearance before the investigating agency and ultimately, the Final Report under Section 173 of the Cr.P.C. was presented against them on

27.09.2018. However, the petitioner was granted the relief of anticipatory bail by the learned Additional Sessions Judge, Patiala, on the ground that, she was not properly and validly served. Thereafter, a supplementary report under Section 173(8) of the Cr.P.C. was presented against the petitioner and her co-accused on 14.08.2021.

¶3It would be apt to record here that, consequent upon grant of anticipatory bail, the petitioner has been regularly appearing in the trial pro-ceedings. Moreover, during pendency of the trial, the petitioner was granted permission to travel to the United States on four occasions and she never jumped or violated any of the conditions imposed upon her. However, now when the petitioner moved an application under Section 205 read with Sec-tion 327 of the Cr.P.C., thereby seeking permanent exemption from per-sonal appearance on various grounds, she has been declined this relief by the learned Magistrate concerned. In this way, the drawing of the declining order dated 15.11.2023 has propelled the petitioner to access this Court. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE PETITIONER

¶4The learned senior counsel for the petitioner has submitted that CRM-M-29726-2024 (O&M) 3 a purely civil dispute has been camouflaged as a criminal litigation and peti-tioner's presence is not required on each and every date of hearing before the learned trial Court concerned.

¶5The learned senior counsel for the petitioner has further submit-ted that the petitioner is a sexagenarian lady holding permanent citizenship of the United States. Not only this, she is also a social worker with Senior Community Service Employment Program. Therefore, owing to her old age medical exigencies, besides her moral and social obligations and commit-ments towards her family and community, petitioner's presence is required in the United States at brief intervals. Moreover, the bona fide of the peti-tioner can be ascertained from the fact that, upon her becoming granted per-mission to travel to the United States on four occasions, the petitioner never committed a single default, rather returned to India within the stipulated pe-riod and joined the trial court proceedings.

¶6Concluding his arguments, the learned senior counsel for the petitioner has submitted that the learned Magistrate concerned has ignored the basic object and principle of the provisions of Section 205 read with Section 327 of the Cr.P.C. and has wrongly and illegally dismissed the peti-tioner's permanent exemption application. SUBMISSIONS OF THE LEARNED STATE COUNSEL

¶7The learned State counsel has vociferously opposed the grant of relief sought by the petitioner, inter alia on the ground that, during the course of investigation, the petitioner and her co-accused did not appear be-fore the investigating agency, which resulted in them becoming declared CRM-M-29726-2024 (O&M) 4 "Proclaimed Persons/Offenders". Therefore, there is likelihood that, in case the petitioner is granted permanent exemption from personal appearance, she may misuse this concession.

¶8The learned State counsel has further submitted that there are serious and specific allegations against the petitioner that she along with her co-accused has cheated the complainant and her children to the tune of crores of rupees by forging certain documents. REASONS FOR ALLOWING THE INSTANT PETITION

¶9This Court has heard the rival submissions made by the learned counsels for the parties and has also made a meticulous survey of the entire record.

¶10What surges forth from a perusal of the impugned order, is that, primarily the following two reasons have been cited therein for declining petitioner's request for permanent exemption from personal appearance:- (i) non framing of charges at that time; (ii) presence of accused is essential for the prosecution to establish her identity at the time of examination of wit-nesses.

¶11For the reasons to be assigned hereinafter, this Court is of the opinion that the impugned order warrants interference. It is not under dis-pute that, as per Sections 205 and 317 of the Cr.P.C., the general rule is that the trial should be held and witnesses be examined in the presence of the ac-cused and absence of the accused from the trial is an exception to the gen-eral rule. Section 307 of the Cr.P.C. endows discretionary powers to the learned Magistrate/ Judge concerned to grant exemption from personal at-CRM-M-29726-2024 (O&M) 5 tendance at any stage of inquiry or trial under the Code.

¶12In the case at hand, there is no wrangle amongst the contesting litigants that, the petitioner is a sexagenarian U.S. Citizen, who had earlier on four occasions travelled to the United States, but, only after getting prior permission from the learned Court concerned and she never committed any default and/or violated any of the terms and conditions imposed upon her. Moreover, it is also not under dispute that, the petitioner has been regularly appearing in the trial court proceedings. For ready reference, the details of orders granting travel permission (supra) to the petitioner are tabulated here-inafter:- Sr. No. Name of Court Date of Order Period of Exemption Granted

¶1JMIC, Patiala 22.10.2021 4 months

¶2JMIC, Patiala 19.04.2022 4 months

¶3JMIC, Patiala 03.01.2023 4 months

¶4JMIC, Patiala 08.06.2023 4 months

¶13Insofar as the first reason behind declining permanent exemp-tion to the petitioner is concerned, i.e. non framing of charges, this reason does not exist any longer, inasmuch as, it has been informed to this Court, besides is apparent from the respondent's short reply dated 11.07.2024 that, charges have been framed on 23.11.2023.

¶14Now, let's advert to the second reason which constituted the backbone for drawing of the impugned order, i.e. necessity of accused's presence for identification by prosecution witnesses. In the case at hand, it is also not under dispute that the petitioner is not required to be identified by all the prosecution witnesses. Therefore, this issue can become resolved DEVINDER YtAhDArVough the learned Magistrate/trial Court concerned directing the petitioner CRM-M-29726-2024 (O&M) 6 to, whenever any relevant prosecution witness, who has to identity the peti-tioner, is to be examined, cause appearance on that particular date for the purpose of identification. FINAL ORDER

¶15As a sequel to the discussion made hereinabove, the instant pe-tition is allowed and the impugned order dated 15.11.2023 is set aside. The petitioner is hereby granted permanent exemption from personal appearance in the trial launched in FIR No.197 (supra), subject to the conditions enu-merated hereunder:-

(a) As and when directed by the learned trial Court con-cerned, the petitioner will cause appearance before it, without any default;

(b) The petitioner will never take the plea of recalling of any witness examined in her absence, but in the presence of her counsel;

(c) The petitioner will forthwith deposit her passport before the learned trial Court concerned and will not leave the country without prior permission of the Court concerned.

¶16Pending application(s) stand disposed of accordingly. (KULDEEP TIWARI) July 16, 2024 JUDGE

CRM-M-29726-2024 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 125 CRM-M-29726-2024 (O&M) Date of Decision : July 16, 2024 POONAM DHAWAN -PETITIONER V/S STATE OF PUNJAB -RESPONDENT CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present: Mr. R.S. Bains, Sr. Advocate with Mr. Aman Raj Bawa, Advocate and Mr. Anmol Deep Singh, Advocate for the petitioner. Mr. Pardeep Bajaj, D.A.G., Punjab. ***