Kishor Rungta v. Labour Enforcement Officer (Central), Office of the Deputy Chief Labour Commissioner (Central), State of Kerala, and James Philip (Addl R3) - CRL.MC No. 4771 of 2022

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 ``` ## **`CRL.MC NO. 4771 OF 2022`** ``` AGAINST THE ORDER/JUDGMENTST 150/2021 OF JUDL.M.F.C.-I,ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` KISHOR RUNGTA, AGED 55 YEARS CHAIRMAN & MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, UDYOGMANDAL, KOCHI, PIN - 683801 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ``` ## **`RESPONDENTS/STATE:`** ``` 1LABOUR ENFORCEMENT OFFICER (CENTRAL) OFFICE OF THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),KENDRIYA SHRAM SADAN, OLIMUGHAL, KAKKANAD,KOCHIN, PIN - 682030 2STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 3JAMES PHILIP, AGED 56 YEARS S/O. LATE DR. P J PHILIP, VALIYATHARAYIL ST. ANTONY VILLA, CHEMBUMKAVU, THRISSUR CITY P.O PIN 680020 [IMPLEADED AS ADDL R3 IN CRLMC 4771/22 AS PER ORDER DATED12/08/2022 IN CRL.MA.3/22] BY ADVS. MANU S. ASG OF INDIA PRATAP ABRAHAM VARGHESE M.L.Suresh Kumar M.L. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) C.ANIL KUMAR ASHA K.SHENOY GOKUL KRISHNA ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 2 ``` ## **`ZIYAD RAHMAN A.A., J.`** ``` -------------------------------------- Crl. M.C.No.4771 of 2022 ``` ``` -------------------------------------- Dated this the 2[nd] day of November, 2022 ``` ## **`O R D E R`** ``` The petitioner is the accused in S.T. No. 150/2021 on the file of Judicial First Class Magistrate, Kalamassery. The aforesaid case was registered based on a complaint submitted by the Assistant Labour Enforcement Officer, alleging non implementation of the award passed by the Central Government Industrial Tribunal cum Labour Court, and the offences alleged against the petitioner are under Section 29 r/w. Section 32 of the Industrial Dispute Act, 1947. The grievance of the petitioner is that he submitted an application before the learned Magistrate, seeking exemption from personal appearance, which was dismissed as per Annexure 3 order. The said order is under challenge in this Criminal M.C. ``` ``` 2.Heard Sri. S. Rajeev, the learned counsel appearing for the petitioner., Sri. M.L. Suresh Kumar, the learned standing counsel appearing for the 1[st] respondent, ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 3 ``` ``` Sri. Vipin Lal, the learned counsel appearing for the second respondent and Sri. P. Ramakrishnan learned counsel appearing for the additional 3[rd] respondent. ``` ``` 3.The contention put forward by the learned counsel for the petitioner is that the petitioner is the Chairman and Managing Director of Fertilizers and Chemicals Travancore Ltd (FACT) and the allegations raised in the complaint are technical in nature. Annexure 1 is the application submitted by the petitioner seeking to exempt him from personal appearance, and Annexure 2 is the application filed by the petitioner to permit him to record the plea through counsel. The contention of the learned counsel for the petitioner is that, the offences alleged against the petitioner are technical in nature, and the physical presence of the petitioner is not at all necessary. The prosecution can be continued, even in the absence of the petitioner, and he is prepared to appear through the counsel. ``` ``` 4.In the impugned order learned Magistrate dismissed the said application only because of the reason that the petitioner had not appeared and was released on ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 4 ``` ``` bail. It was observed that since he did not appear, the exemption cannot be granted. However, it is a well settled decision of law that, as per section 205 of Cr.P.C., nothing precludes the Magistrate from granting exemption to the accused, from appearing in person, even before the bail is taken. The Honourable Supreme Court considered the question regarding the circumstances under which personal exemption can be granted inM/s Bhasker Industries Ltd v. Bhivani Denim Apparels Ltd and others [2001(3) KLT 307 (SC), and it was observed in para 14 as follows: ``` ``` “…….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 in that particular case.” ``` ``` In para 16, 17 and 19, it was observed as follows: ``` ``` 16.Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 5 ``` ``` summons cases by magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the accused appears or is brought before the magistrate. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that 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. ``` ``` 17.Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 6 ``` ``` the proceedings including examination of the witnesses. ``` ``` 18….. ``` ``` 19.The position, therefore, boils down to this:It is within the powers of a magistrate and 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 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 interest of justice. However,the magistrate who grants such benefit to the accused must take precautions enumerated above, as a matter of course. We may reiterate that when as accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with, the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.” ``` ``` 5.After considering all the relevant aspects, I am of the view that this is a fit case in which the ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 7 ``` ``` principles laid down by this court in the said decision can be applied. As pointed out by the learned counsel for the petitioner, the offence is technical in nature, and the identity of the accused is not a matter of concern to decide the question of culpability. Therefore, no prejudice would be caused to the prosecution by granting an exemption to the petitioner from personal appearance. ``` ``` 6.Accordingly, this criminal M.C. is allowed, and the Annexure 3 order is set aside. The petitioner is granted exemption from appearing in person and shall be entitled to appear through his counsel, and the petitioner shall also be entitled to answer the plea through his counsel. Further, it is made clear that nothing in the order passed by this court will preclude the learned Magistrate from insisting on the appearance of the petitioner if it is found that, at any stage of the proceedings, his physical presence is necessary. Considering the fact that the issue involved is technical in nature, and mainly to be decided based on documentary evidence, it is only proper that the trial of this case be conducted expeditiously; therefore, it is ordered that the learned Magistrate shall make every endeavour to dispose ``` ``` Crl. M.C.No.4771 of 2022 ``` **==> picture [6 x 7] intentionally omitted <==** ``` of S.T. No. 150/2021 as expeditiously as possible at any rate within a period of six months from the date of production of a copy of this order. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` san ``` ``` Crl. M.C.No.4771 of 2022 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 4771/2022`** ``` PETITIONER ANNEXURES Annexure-I ``` ``` Annexure-IA COPY OF THE PETITION SUBMITTED UNDER SECTION 205 CRPC DATED 26.05.2022 Annexure-IIA COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO PERMIT HIM TO RECORD THE PLEA OF NOT GUILTY THROUGH LAWYER ON 26.05.2022 Annexure-IIIA CERTIFIED COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS, KALAMASSERY DATED 01.06.2022 ```