Crl. Petn. No.751 of 2005

28th March, 2005

Petitioner Counsel: S. G. BHAGAVAN
Respondent Counsel: K. R. ASHOK KUMAR

Cases Cited:
Chandu Lal Chandrakar Vs. Puran Mal, AIR 1988 SC 2163 [Para 3,8]
Bibhuti Bhusan Das Gupta Vs. State of West Bengal, AIR 1969 SC 381 [Para 4]
Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd., 2001 ALL MR (Cri) 1961 (S.C.)=2001(7) SCC 401 [Para 5,8]

JUDGMENT

-The point for decision in this petition filed under Section 482 of Cr.P.C. is Whether an accused who has applied for permanent exemption from personal appearance is entitled to remain absent merely on the ground that his application has not been disposed of.

2. In the prosecution, for an offence punishable under Section 138 of the Negotiable Instruments Act, the petitioner - a Director of accused No.1-Company sought for permanent exemption from appearance on the ground that he being a businessman staying in Delhi was required to visit different places and it would be inconvenient for him to attend the Court on all dates. That application was filed after closure of the cross-examination of P.W.1 i.e., the complainant and after the case had been posted for further evidence of the complainant. No decision was taken by the learned Magistrate on that application. In the next date i.e., on 31-1-2005, at the time of recording evidence of P.W.2, since the petitioner was absent, an application under Section 205 of Cr.P.C. was filed seeking exemption for the day and that was granted. Thereafter, the case was posted to 5-2-2005 for the examination of accused under Section 313 of Cr.P.C. On that day also, an-application under Section 205 of Cr.P.C. was filed on behalf of the petitioner. That application was rejected by the learned Additional CMM and NBW was issued to the accused, returnable by 8-2-2005. On 8-2-2005, the bail bond of the petitioner was cancelled and fresh NBW was issued. It is these orders and the proceedings that have been challenged in this petition.

3. Two grounds have been urged by the learned Counsel for the petitioner in support of the prayer in the petition. The first ground is regarding the maintainability of the criminal case itself. In this regard, Sri S. G. Bhagawan, learned Counsel for the petitioner invites the attention of the Court to the commencement of order sheet, wherein the words 'cognizance taken' are mentioned, but the order does not bear the signature of the learned CMM. He submits that in view of this defect, subsequent proceedings are vitiated. This ground will not be available to the petitioner since subsequent order i.e., the order dated 20-9-2002 shows that the learned CMM after verifying the original cheque took cognizance of the complaint and after recording the sworn statement of the complainant, directed registration of the case against the petitioner.

Regarding absence of the petitioner on 29-1-2005 and subsequent to that date, it is submitted by the learned Counsel for the petitioner that the absence of the petitioner was not deliberate and the events would disclose that he had fully co-operated with the Court in the progress of the case. It is submitted that exemption sought was only in view of his genuine difficulties in coming from Delhi to Bangalore only to attend the case often. He points out that in the application itself, it had been clearly stated by the petitioner that his presence was not necessary for progress of the case as he was represented by an advocate who would proceed with its progress including his examination under Section 313 of Cr.P.C. He has also not disputed his identification. It is further submitted by the learned Counsel for the petitioner that this is not a case wherein cheque had been issued by the petitioner, but that cheque had been issued on behalf of accused No.1 - Company. Complaint against the petitioner was given only because he was a Director of the accused No.1- Company and therefore, the circumstance required that exemption from personal appearance be granted.

In this regard, he relies on three decisions. In the first decision in the case of Chandu Lal Chandrakar Vs. Puran Mal, reported in AIR 1988 SC 2163, on conclusion of trial, the accused therein had been directed by the Magistrate to appear personally before the Court for recording his statement as contemplated under Section 313 of Cr.P.C.The appellant's request that the statement may be recorded through his Counsel was rejected by the trial Court and he was directed to appear before the Court. The appellant challenged the order of the learned Magistrate before the High Court by means of Miscellaneous Petition under Section 482 of Cr.P.C. The High Court rejected the petition and refused to interfere with the order of the learned Magistrate. When the order was challenged before the Hon'ble Supreme Court, it was observed as under:

"2. After hearing the learned Counsel for the parties at some length, Mr. S. K. Puri, learned Counsel appearing along with Mr. Rajinder Sachhar, stated on taking instructions that the appellant does not want to answer any of the questions which are going to be put to him by the trial Court under Section 313 of the Code of Criminal Procedure and he further states that he will not raise the question of prejudice, if any caused to him on account of his non-examination at subsequent stage of trial, in appeal or revision. In view of this statement, we are of the opinion that it is not necessary for the appellant to appear before the trial Court. We accordingly, set aside the order of the trial Court and High Court, directing the appellant to appear before the trial Court for making statement under Section 313 of the Code of Criminal Procedure."

4. In the second decision i.e., in the case of Bibhuti Bhusan Das Gupta Vs. State of West Bengal, reported in AIR 1969 SC 381 it is observed that even in a case where the Magistrate has dispensed with the personal appearance of the accused, a pleader cannot represent the accused for purposes of Section 342 of the Criminal Procedure Code. It is observed that except where the accused is a Company or a juridical person and hence, cannot be examined personally, in all other cases only the accused can be examined under S.342 of the Criminal Procedure Code. This is cited in support of the petitioner's contention that since the accused-Company cannot be examined personally, examination of advocate duly instructed meets compliance with the requirement.

5. In the latest decision, in the case of Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd., reported in 2001(7) SCC 401 : (2001 ALL MR (Cri) 1961 (S.C.)) the Hon'ble Supreme Court has observed as under:-

"It is clear from Section 273, Cr.P.C. that the normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused, such evidence can be taken but then his counsel must be present in the Court, provided the accused has been granted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose, the proceedings of the Court in the case should register progress. 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.

Sections 251 and 205 (1) make it clear that 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 the proceedings including examination of the witnesses.

As regards the question as to what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding the case the legislature has taken care of such eventualities. Section 205 (2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317 (1) confers discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. Thus, 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 turbulations on 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. When an 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.

These are days when prosecutions for the offence under Section 138 of the Negotiable Instruments Act are galloping up in criminal Courts. Due to the increase of inter-State transactions through facilities of the banks, it is not uncommon that when prosecutions are instituted in one State, the accused might belong to a different State, sometimes a far distant State. Not very rarely, such accused would be ladies also. For prosecution under Section 138 of the NI Act, the trial should be that of a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation would inflict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings."

6. It is therefore clear that in a criminal trial, the presence of the accused is necessary before the Court and a duty is cast upon him to be present before the Court on all dates except when he is exempted from personal appearance. The Court has to take into consideration the nature of the offence, the necessity of personal presence of the accused at the time of evidence and if satisfied, may exempt his presence. The observations of the Supreme Court referred to above are in respect of an offence punishable under election 138 of the Negotiable Instruments Act wherein it is stated that the personal attendance of a Director may not be necessary. An accused cannot as a matter of right seek exemption from personal appearance. The Court has to consider the grounds for exemption and under facts and circumstances of the case, has to exercise its discretion judiciously and decide whether in that particular case, the accused may be granted exemption from personal appearance. Mere fact that an application for exemption has been filed does not give a right to the accused to remain absent and he cannot plead that his application for exemption was pending, to justify the absence.

7. However, in the present case what is seen is that the petitioner/accused had cooperated with the Court and had promptly cross-examined the complainant. It is submitted by the learned Counsel for the petitioner that even when the complainant sought examination of a witness who had not been cited in the complaint, no objection was raised by the accused and his Advocate promptly cross-examined prosecution witness. In the light of these facts and in view of the specific averments in the application for permanent exemption to the effect that his advocate would represent him even in examination under Section 313 of Cr.P.C., a lenient view has to be taken. In that view of the matter, I am of the opinion that the order of the learned Additional CMM dated 8-2-2005, cancelling bail of the petitioner is not justified.

8. For the abovesaid reasons, petition is allowed in part. The order of the learned Additional CMM dated 8-2-2005 cancelling bail of the petitioner is hereby quashed and the matter stands remitted to the learned CMM to decide the application dated 29-1-2005 for permanent exemption of the accused under Section 317 of Cr.P.C. in the light of the observations of the Supreme Court in Chandu Lal Chandrakar Vs. Puran Mal, AIR 1988 SC 2163 and Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd., 2001(7) SCC 401 : (2001 ALL MR (Cri) 1961 (S.C.)).

9. Learned Counsel for the petitioner has filed a memo producing the affidavit of the petitioner stating that the petitioner does not want to answer any of the questions which are going to be put to him by the trial Court under Section 313 of Cr.P.C. and that he would not raise the question of prejudice, if any, caused to him on account of his non-examination in subsequent stage of trial, in Appeal or in Revision. This may be taken into consideration by the learned CMM. However, it is made clear that the petitioner shall be present before the Court on the date of the judgment.

Order accordingly.