Manish Gai vs State Of Bihar on 23/11/2006

Equivalent citations: 2007 CriLJ 1358
Bench: N P Singh
Manish Gai vs State Of Bihar on 23/11/2006

ORDER

Navaniti Pd. Singh, J.

1. Heard learned Counsel for the petitioner and learned A.P.P.

2. By these applications orders dated 29-5-2006 passed by Sub-Divisional
Judicial Magistrate, Patna, in Case No. 11(M) of 2006 and Case No. 46(M) of
2006, refusing the privilege under Section 205, Cr. P.C., has been challenged.

3. The petitioner is the Managing Director of M/s. Ajay Feed Products, Katni,
Private Limited Company incorporated under the provisions of Companies Act,
1986, He resides at Katnl in the State of Madhya Pradesh from where he conducts
the business on behalf of the company. Certain food items were found allegedly
adulterated for which a prosecution was instituted for violation of the
provisions of Prevention of Food Adulteration Act. The petitioner on coming to
know of the proceedings filed an application before the trial Court for
exemption from appearing in person in terms of Section 205, Cr. P.C. The ground
for filing such an application was that the petitioner is a busy businessman
residing at Katnl in the State of Madhya Pradesh and it will cause him undue
harassment to physically appear on each and every date in the trial Court, He
undertook to appear as and when Court would order for his personal appearance,
which was necessary for the trial Court, still the same was rejected by the
impugned order on four grounds, i) warrant of arrest had already been issued
against the petitioner; (ii) petitioner was not a Pardanashin lady; (iii)
petitioner was not a busy person engaged in law and order and (iv) petitioner
could as and when avail of Section 317, Cr, P.C.

4. I am afraid none of the grounds, as given above, is lawfully justifiable
ground to refuse the prayer as contemplated under Section 205, Cr. P.C.

5. To say the least it appears that the learned SDJM has failed to exercise
its jurisdiction which was vested in him under Section 205, Cr. P.C. This Court
in the case of Ram Harsh Das v. State of Bihar since reported in 1998 (1) PLJR
502 has held that application of Section 205, Cr. P.C. does not end by issuance
of warrant of arrest if at the first instance summons were issued. To my mind
law has not changed since then. If summons are issued at the first instance and
subsequently warrant of arrest is issued even in such a situation the benefit of
Section 205, Cr. P.C. is available. The Magistrate was clearly wrong in his
notion of law.

6. The second and third grounds are equally misconceived as no such
alternative is found in Section 205, Cr. P.C. Law nowhere states that benefit of
Section 205, Cr. P.C. can only be given to Pardanashin lady or people engaged in
law and order. I failed to understand from where the Magistrate has borrowed
these grounds which the legislature did not provide. Coming to the last ground
that Section 317, Cr. P.C. would be available as and when necessary is equally
misconceived. The provisions of Section 205, Cr. P.C and Section 317, Cr. P.C.
are two different provisions. They have been engrafted by the legislature
knowing full well the existence of each other provision. If what the Magistrate
say is correct then Section 205, Cr. P.C. would be rendered otiose.

7. Section 205, Cr. P.C. gave a discretion to the Court to exempt a person
from personal appearance till such time his personal appearance was necessary
for the trial whereas Section 317, Cr. P.C. is a provision, where, on any
particular day where accused is required to be present in person. He is unable
to come or appear, he may seek leave and be absent and for this he is to move to
the Court under Section 317, Cr. P.C. In operation both the sections are
different and distinct.

8. The legislature contemplated speedy trial and as such in past rarely
occasion had arisen for people to seek exemption from personal appearance.
Now-a-days criminal trial are notoriously slow. It takes five (years) or decade
for a trial to conclude, if Courts were to insist that on each and every date
i.e. virtually every fifteen days an accused must appear from Katni in the State
of Madhya Pradesh to Patna and attend his Court and that too for no purpose,
except filing attendance it would only be travesty of Justice. To my mind, to
undertake journey from Katni to Patna so frequently would be greater punishment
than what he could have punished in the case. Power to refuse permission Under
Section 205, Cr. P.C. should not be used as a substitute for ultimate punishment
which could be awarded. Personal appearance in course of trial is for a purpose
and not only for "fun of it". If no purpose is to be served by personal
appearance day after day then it should be dispensed with. The Magistrate still
retains power to order for personal appearance whenever necessary.

9. It has now been settled by series of decisions of this Court and the Apex
Court that where specially a person residing out of the place where the trial is
being conducted, by virtue of his business or otherwise is busy cannot
continuously appear every fifteen days or every month he should be exempted from
appearance before the trial Court till such time his personal appearance is
necessary. I may clarify that there is no impediment for the trial Court to
continue in absence of an accused person because if he has been exempted on his
own application under Section 205, Cr. P.C. then evidence recorded in presence
of his lawyer but in his absence cannot be challenged as wrongly recorded. That
evidence would bind the accused notwithstanding it having been recorded in his
absence (see Shantanu Das v. State 2000 (3) PLJR 134).

10. In my view what the Courts have to see is whether absence of the
petitioner would delay the trial in any manner or prejudice the trial in any
manner and not otherwise.

11. I may also refer to recent judgment of this Court in the case of Jayant
Dang v. State 2004 (4) PLJR 25 (HC), and Ajay Kumar Sharma v. State 2005 (2)
PLJR 505 and also the recent judgment of the Supreme Court in the case of S. V.
Muzumdar v. Gujarat State Fertilizer Co. since , wherein para 13 the Apex Court
in

the said decision has held thus:

It has to be borne in mind that while dealing with an application in terms
of Section 205 of the Code, the Court has to consider whether any useful purpose
would be served by requiring the personal attendance of the accused or whether
the progress of the trial Court Is likely to be hampered on account of his
absence. We make it clear that if at any stage the trial Court comes to the
conclusion that the accused persons are trying to delay completion of trial it
shall be free to refuse the prayer for dispensing with personal attendance.

12. In that view of the matter the impugned order is set aside and the trial
court is directed to pass order in terms of Section 205, Cr. P.C. and the
observations made above in this order.

13. In the result, this application is allowed.

14. Let Registrar General of this Court circulate a copy of this order to the
Registrar of the Civil Courts in the State for guidelines of judicial officers
in future so that this question is accordingly dealt by Courts without this
Court wasting its time again and again.

Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

Equivalent citations: 2005 (1) BLJR 147

Bench: N Sinha

Jayant Dang And Anr. vs The State Of Bihar And Anr. on 26/7/2004

JUDGMENT

Navin Sinha, J.

1. This order shall dispose of Cr. Misc. No. 29832/2000 preferred by one
Jayant Dang and Cr. Misc. No. 34712/2000 preferred by one Prabhat Ranjan.
Cognizance having been taken against both the petitioners in Complaint Case No.
1558(C) of 1998, both the petitioners preferred application under Section 205,
Cr PC for dispensing with their personal appearance. By an order dated 22.8.2000
passed by the Judicial Magistrate, Patna the prayer for grant of relief under
Section 205, Cr PC has been declined. Thus the petitioners who are impleaded as
accused No. 2 and accused No. 6 respectively in the complaint petition have
approached this Court.

2. The allegations as made out in Complaint Case No. 1558(C) of 1998 for the
purposes of the present application may be stated succinctly. Suffice it to say
that the opposite party as complainant instituted the present complaint based
upon what was originally a commercial interaction by him with regard to taking
of a loan from M/s Escorts Finance Limited, a company registered under the
Indian Companies Act, situated at New Delhi. Both the present petitioners here
are the officers of the said company. The petitioner in the first case is said
to be the Managing Director and the petitioner in the second case is said to be
one of the officers of the company. The complainant alleged that he had applied
for a loan/finance to the company, M/s Escorts Finance Ltd. through its
franchisee A.P. Fin. Leasing (India) Limited situate at Maurya Complex, Patria
for purchase of a car. The latter was the authorised franchisee of the aforesaid
company impleaded as accused No. 1 in the complaint. The opposite party No. 2 in
pursuance of having applied for such loan gave certain post-dated cheques. The
opposite party No. 2 never received the loan amount and requested return of the
postdated cheques alongwith other papers signed by him for grant of loan. The
opposite party No. 2 then obtained a loan from other sources and purchased a
car. The car was allegedly seized by the musclemen at the behest of the
petitioners and others and released only after the opposite party No. 2 was
forced to sign certain cheques. The payments of these cheques was then stopped
by the opposite party. The complainant thus alleged that he was wrongly being
harassed for the loan that he had never taken and money had been realized from
him illegally by fabrication of documents of loan etc. On the basis of
allegations cognizance was taken under Sections 348, 384, 409, 420, 467 and
120-B, IPC.

3. The lower Court records had been summoned earlier by an order dated
3.7.2003 of this Court. The parties thus made their submissions on the basis of
the lower Court record in which the narration of dates and events hereinafter
was not disputed by the Counsel appearing for the parties. Summons were issued
on 2.9.99 to both the petitioners. No service report with regard to the summons
was available on record till 14.12.1999. On 6.1.2000 accused No. 6, the
petitioner in Cr. Misc. No. 34712/2000 entered appearance and filed an
application under Section 205, Cr PC. No service report with regard to summons
sent to the petitioners were still available. At this stage the Court below
proceeded to issue bailable warrant of arrest against the accused No. 2, the
petitioner in Cr. Misc. No. 29832/2000. Having been made aware of the bailable
warrant issued against him the said petitioner entered appearance on 7.3.2000
and filed an application for dispensing with his personal appearance under
Section 205, Cr PC.

4. Learned Senior Counsel Shri B.P. Pandey, appearing on behalf of both the
petitioners submitted that the petitioners were employees of a Finance Company
situate at New Delhi. The allegations against them in the complaint were omnibus
in nature and there were no individualistic allegations against them in respect
of which cognizance had been taken. It was submitted that the complaint merely
recited that the petitioners were directly responsible and have participated in
the commission of the offence. Notwithstanding the allegations, it was submitted
that the parameters for grant of relief under Section 205, Cr PC more or less
stand defined both by this Court and the Apex Court. Notwithstanding the
enunciation of law and considering the averments in the complaint, there was no
justification to decline grant of relief to the petitioners. The impugned order
rejecting the same also does not reflect any application of mind to the
principles under which the application was required to be considered. Summing up
it was pleaded that in so far as accused No. 6, was concerned he had entered
appearance at the stage of summons. In so far as accused No. 2 was concerned
there being no service report with regard to the summons issued to him, issuance
of bailable warrant was contrary to law and therefore the said accused was
entitled to the benefits of his application under Section 205, Cr PC preferred
by him on 7.3.2000.

5. Learned Counsel appearing on behalf of the opposite party contended that
since accused No. 6 had entered appearance on 6.1.2000, both the accused were at
New Delhi, therefore accused No. 2 cannot contend that he was not aware of the
proceedings. Referring to Section 63 of the Criminal Procedure Code, learned
Counsel submitted that the moment summons were served upon the local office of
the Company both the petitioners would be deemed to have knowledge of the case,
and cannot be allowed to contend to the contrary. There was thus proper service
of summons. It was thus submitted that bailable warrant having been issued
against the accused No. 2 the privilege of Section 205, Cr PC was not available
to him any more, learned Counsel concluded his submissions by stating that the
allegations were serious in nature and that the petitioners did not deserve
privilege of Section 205, Cr PC.

6. Having considered the rival submissions of the Counsel for the parties
this Court holds that it is not in dispute from the records that accused No. 6
in fact entered appearance at the stage of summons. In so far as accused No. 2
is concerned, there was no service report with regard to summons when warrants
came to be issued against him on 11.1.2000. Chapter VI of the Code of Criminal
Procedure details the procedure of issuance of and service of summons. The stage
of warrant as contained in Part B of Chapter VI arises only thereafter. In the
absence of any order recording the satisfaction of the Court below with regard
to the service of summons according to law, the bailable warrants issued against
the petitioner (accused No. 2) cannot be sustained. In the circumstances, this
Court holds that the issuance of warrant against accused No. 2 was not justified
at this stage. Reliance may be had upon the judgment of this Court reported in
2000(3) PLJR

251. Warrants thus having been issued contrary to law the proceedings would
be deemed to be at the stage of summons and the accused No. 2 having entered
appearance at this stage cannot thus be denied the benefit of consideration for
grant of relief under Section 205, Cr PC. This Court therefore holds that the
proceedings in so far as accused No. 2 be concerned, rests at the stage of
summons.

7. The primary consideration for grant of relief under Section 205, Cr PC,
keeping in mind interest of opposite party No. 2, would be whether his interest
would be prejudiced in any manner if the relief prayed for was granted. Learned
Counsel for the opposite party No. 2 in reply to the query of the Court
submitted that he had been subjected to unnecessary harassment by the
petitioners and others and therefore they did not deserve benefits of Section
205, Cr PC.

8. This Court in the facts and circumstances of the case considers it apt to
agree with the judgment relied upon by the Counsel for the petitioners reported
in 1998(1) PLJR 503. A Division Bench of this Court while dealing with the issue
of grant of relief under Section 205, Cr PC held that even in cases where
warrants have been issued in the first instance the Court may dispense with the
personal appearance in exercise of powers under Section 482 of the Code, if a
proper case is made out for the ends of justice. The Division Bench further went
on to hold that the exercise of power under Section 205, is discretionary and to
be considered in a reasonable manner. No hard and last rule could be laid down.
The Court should be liberal in granting exemption in personal appearance except
where serious issues or allegations of moral turpitude are involved. The nature
of the allegation, conduct of the accused, inconvenience likely to be caused to
the accused due to his appearance on every day in the Court the comparative
advantage to the prosecution, are all relevant considerations for deciding the
question of dispensing with the personal appearance. Though no categorization of
cases for grant of relief under Section 205, Cr PC could be made but generally
"....busy business people... should be given the benefit of the said provision
unless they are facing prosecution under serious offences like murder, rape,
misappropriation of money, harassment to women etc." The fact that the
petitioners are business people and reside at Delhi, while the trial is to be
conducted at Patna are issues which have not been considered in the impugned
order. More recently the Supreme Court in (2001) 7 SCC 401 while considering the
issue of dispensing with personal attendance in a prosecution arising under the
Negotiable Instruments Act, held that in appropriate cases the Magistrate can
allow an accused to make even first appearance through the counsel. The law
would enjoin that personal appearance of an accused could be dispensed with at
any stage in a proceeding at the summon stage and that if insistence of his
personal appearance would itself inflict enormous suffering or tribulation on
him and the comparative advantage would be less. The discretion would need to be
exercised where due to far distance at which the accused reside or carries on
business, or for other good reason were dispensing from personal appearance
would be in the interest of justice. These are all aspects which have to be
considered for grant of relief under Section 205, Cr PC. This position in the
law has been reiterated by a Bench of this Court in a judgment reported in
2002(3) PLJR 583, placing reliance upon the law as enunciated by the Apex Court
in the judgment aforesaid. This is the position reiterated in 2002 (3) PLJR 628
by another Bench of this Court.

9. In the background of the law as aforesaid with regard to the consideration
of an application under Section 205, Cr PC this Court is inclined to hold that
the impugned order dated 22.8.2000 is cryptic in nature. It does not reflect any
consideration of the issues germane for grant of relief under Section 205, Cr
PC. It is apparent that in the background that the impugned order does not take
into consideration the issue relevant in law for consideration of an application
under Section 205, Cr PC prejudice has been occasioned to the petitioners. In
the circumstances of the case, this application therefore has to be allowed.

10. Cr. Misc. No. 19832/2000 and Cr. Misc No. 34712/2000, are therefore
allowed. In so far as Cr. Misc. No. 29832/2000 is concerned, this Court, has
held hereinabove, that the case stands at the summon stage in so far as the said
petitioner is concerned.

11. The impugned order dated 22.8.2000 is therefore set aside. The matter is
remanded to the Court below to consider the application under Section 205, Cr PC
preferred on behalf of the petitioners afresh in accordance with law. The Court
below shall hear the parties afresh after fixing the date for hearing and then
proceed to pass appropriate orders in accordance with law.

Suhas Palekar vs Badshah Hotel And Resorts

Equivalent citations: 2004 CriLJ 536

Bench: T Vaiphei
Suhas Palekar vs Badshah Hotel And Resorts on 1/9/2003

ORDER

T. Vaiphei, J.

1. This revision application under Section 401 read with 482 of the Cr.P.C.
directed against the order dated 29-4-2002 passed by the learned Additional
Sessions Judge, West Tripura, Agartala in Crl. Rev No. 45(4) of 2001 affirming
the order dated 6-10-2001 passed by the learned Additional Chief Judicial
Magistrate, West Tripura, Agaratala in CR No. 1199/2000.

2. The facts of the case in brief are that the petitioner is the Vice
President, Corporate Human Resources Management and Communication of Kirloskar
Brother Ltd. Having its office at Awas 11/46, Nirmal Boug Udyog Bhavan, Tilak
Road, P.S. Pune, Pune/411 002. It is stated in the revision petition that
Kirloskar Brothers Ltd. Employs more than four thousands workers and staffs in
its establishment at its three factories located in Maharashtra and Madhya
Pradesh and is having regional office and branch office all over the country.
For the purpose of management and meeting the daily needs of the workers and
staff, it is necessary for the petitioner to be available at its office at all
times. It is further stated in the revision petition that the petition that the
learned Addl. Chief Judicial Magistrate, West Tripura, Agartala was pleased to
take cognizance of offence punishable under Section 500/501 of the IPC and
issued summon against the petitioner. On receipt of the summon, the petitioner
contacted his Advocate to ascertain the facts and circum stances leading to the
filing of the complaint case against him. The petitioner states that similar
notice was also received by one Sri Sanjoy Kirloskar whereupon the said Sanjoy
Kirloskar filed an application under Section 482, Cr.P.C. before this Court
being Crl. Rev. No. 13 of 2001 for quashing the proceeding before the learned
trial Court. After hearing the both sides, this Court was pleased to quash the
said proceeding in so far as the said Sanjoy Kirloskar is concerned vide
judgment dated 27-4-2001. The petitioner decided to contest the proceeding
before the Addl. Chief Judicial Magistrate, West Tripura, Agartala and
accordingly, engaged his advocate to enter into appearance on his behalf of and
take all necessary steps for contesting the said proceeding. Accordingly, Sri
Hare Krishna Bhowmik, Counsel for the petitioner entered his appearance on
behalf of the petitioner and on 26-6-2001 filed an application under Section
205, Cr.P.C. praying for exempting the petitioner from appearing before the
learned Trial Court with the following undertakings.

(a) That the petitioner will never dispute or challenge his identity during
the trial before the learned Trial Court.

(b) That he will attend the trial Court as and when desire by the learned
Trial Court.

3. He also stated in his petition the circumstances under which he could not
personally attend the Trial Court. Against this petition, the opposite party
filed an objection contending that the petition is not maintainable on the
ground that the provisions of Section 205, Cr.P.C. apply at the time when summon
was issued and it cannot be invoked by the accused petitioner at this stage.

4. Learned Trial Court after hearing rejected the application filed by the
petitioner by his order dated 6-10-2002 on the ground that the petitioner had
not appeared even once from the very inception of the case. By relying upon the
judgment of the Apex Court reported in (2001) 1 SCC 710, the trial Court held
that the first appearance of the accused person is a must in the Court when the
case is pending. After which the Court may exempt the accused from personal
appearance. Therefore, the petitioner filed a revision petition before the Ld.
Additional Sessions Judge, West Tripura challenging the said order of the Ld.
Additional Chief Judicial Magistrate, West Tripura. The learned Additional
Sessions Judge by the order dated 29-4-2002 dismissed the revision petition.

5. Aggrieved by the said orders of the learned Trial Court and the Addl.
Sessions Judge, the petitioner has approached this Court under Section 401 read
with 482, Cr.P.C.

6. Heard Mr. P.K. Biswas, learned Counsel for the petitioner. I have also
heard Mr. D. Guha and Mr. P. Chakraborty, learned Counsel appearing for the
respondent.

7. It is vehemently submitted by the learned Counsel for the petitioner that
both the learned Addl. Sessions Judge and the learned Additional Chief Judicial
Magistrate grossly erred in rejecting the application of the petitioner for
exempting his appearance in Court. In this connection, learned Counsel cited the
decision of the Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim &
Apparels Ltd. Reported in (2001) 7 SCC 401 : (2001 Cri LJ 4250). On the other
hand, Mr. P. Chakraborty; learned Counsel for the respondent submits that in
view of the decision rendered by the Apex Court in a case reported in (2001) 1
SCC 710 where the Apex Court has clearly held that first appearance of the
accused person is most essential in the Court where the case is pending and
after which the Court may exempt the accused from personal appearance. The Court
below did not commit any illegality in rejecting the prayer of the petitioner .

8. I have gone through the impugned order and I have also examined the rival
contention of the Counsel appearing on behalf of both the parties. It may be
noted that the petitioner in his application before the learned Additional Chief
Judicial Magistrate, West Tripura, Agartala has clearly mentioned the reason for
his inability to attend the Court personally. This is not a case in which the
petitioner is merely seeking exemption from appearance without any reason as
stated earlier. As a responsible official in the Kirloskar Brothers Ltd. it is
imperative that he be available at his office at all times to look after the
management of the Company. The impugned order of the learned Addl. Chief
Judicial Magistrate shows that the ground of exemption stated by the petitioner
were not dealt with in a manner expected of a judicial officer. The learned
Addl. Chief Judicial Magistrate is expected to and should apply his mind
carefully on the reasons given by the petitioner in his application. The order
dated 6-10-2001 clearly shows that the learned Chief Judicial Magistrate has
been completely swayed by the facts that the accused petitioner did not appear
before him even once from the date of inception of the case and that he has
failed to consider the grounds of exemption urged by the petitioner. On going
through the impugned order of the learned Addl. Sessions Judge it is quite
evident that the contention of the petitioner on this aspect has also escaped
the attention of the learned Addl. Sessions Judge.

9. Learned Counsel for the petitioner strenuously urged that the Apex Court
in Bhaskar Industries Ltd. case (2001 Cri LJ 4250) (supra) has held that in a
summon case, the personal appearance of the accused is not to be insisted upon.
I have carefully gone through the judgment of the Apex Court. To my mind, what
the Apex Court has held is that in an appropriate case, the Magistrate can
dispense with the personal appearance of the accused in Court. But the Apex
Court does not said that is a matter of right for the accused not to appear in
Court personally in summon case. In other words, the law laid down by the Apex
Court, as I understand, is that in a summon case such as one involving minor
offence, where personal attendance may result to him enormous hardship and heavy
expenses, the Court may dispense with his personal attendance at any particular
stage of the proceeding after taking an undertaking from him 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 the Court and he would have no objection in
taking evidence in his absence. It is thus clear that the accused cannot claim
exemption from personal appearance in the Trial Court as a matter of right, but
he can apply to the Court for such exemption on some sufficient ground. At this
stage, it may be profitable to extract the observation of the Apex Court as
under (Paras 18 and 19) :

"Section 205(2) says that the Magistrate can in his discretion direct the
personal attendance of the accused at any 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 tribulations
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."

10. So far as the submission of the learned Counsel of the respondent is that
the first appearance of the accused is a must in the Court where the case is
pending and after which the Court may except the accused from personal
appearance is concerned, the Apex Court in Bhaskar Industries Ltd. case (2001
Cri LJ 4250) (supra) has dealt with the same situation which may be extracted
hereunder :--

"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 the proceedings including examination of the witnesses."

11. The above paragraph is a complete answer to the submission of the learned
Counsel for the respondent. I need say no more in this behalf. In the light of
the foregoing decision, it is crystal clear that the petitioner can be exempted
from making personal appearance before the learned trial Court even on the first
date fixed for his personal appearance if he is duly represented by his Counsel.
Needless to say, the learned Addl. Chief Judicial Magistrate may take necessary
precaution when he decides to exempt the petitioner from personal appearance by
ensuring that necessary undertaking is given by him to his satisfaction that he
would not dispute his identity as a particular accused in the case and the
Counsel on his behalf would be present in the Court and that he has no objection
in taking evidence in his absence.

12. In view of the above, the impugned order dated 29-4-2002 passed by the
learned Addl. Sessions Judge, West Tripura, Agartala as well as the order dated
,6-10-2001 passed by the Chief Judicial Magistrate, West Tripura, Agartala
suffered from non application of mind and as such the some cannot be sustained.
In the result, the impugned order dated 29-4-2002 passed in C.R. 45(4)/01 as
well as the order dated 6-10-2001 passed in CR 1199 of 2000 are hereby quashed.
The petitioner is directed either by himself or through his counsel to move a
fresh application seeking relief under Section 317, Cr.P.C. before the learned
Addl. Chief Judicial Magistrate, West, Tripura, Agartala and if such application
is filed, learned Magistrate shall duly consider such application in the light
of the observation made above and pass orders thereof.

No order as to costs.

Revision application stands allowed.

Bhaskar Sen vs State Of Maharashtra And Ors. on 1/9/2004

Equivalent citations: 2005 (1) ALD Cri 11, III (2007) BC 104, 2004 (4) MhLj 1115

Bench: D Bhosale

Bhaskar Sen vs State Of Maharashtra And Ors. on 1/9/2004

JUDGMENT

D.B. Bhosale, J.

1. This group of five petitions involves a common question of law and,
therefore, were heard together and are being disposed of by this common
judgment. The prayer in the first four petitions is for quashing of the non-
bailable warrants (for short, "NBW"), while in the last petition the prayer is
for quashing of the order passed under Section 82 of Criminal Procedure Code,
1973 (for short, "Code"), by which the proclamation has been published requiring
him to appear before the learned Magistrate. All these petitions arise from the
proceedings under Section 138 of Negotiable Instruments Act, (for short, "the
Act").

2. The question raised in these petitions is as to whether in summons case it
is imperative for an accused to appear in the trial Court on each and every date
of hearing and/or whether the Courts should be generous and liberal in
exercising the powers conferred under Sections 205 and 317 of the Code and
dispensing with a physical presence of an accused unless his presence is
imperatively needed. For appreciating the submissions of the learned counsel for
the parties better and for deciding the said question, the factual matrix in all
the petitions, that would be relevant and material, in brief, is as under.

(a) In Criminal Writ Petition No. 1424 of 2003, the complaint under Section
138 read with Section 141 of the Act came to be filed on 22-8-2002. The summons
were issued on 28-3-2003 calling upon the petitioner-accused to appear on
19-4-2003. In due compliance of the summons, the Advocate filed an appearance on
behalf of the petitioner on 19-4-2003. On the very same day, a warrant was
issued to secure presence of the petitioner. On 12-9-2003, the revision
application was filed in the Sessions Court, Thane, against the order of
issuance of the warrant. The revision was dismissed on 12-9-2003. Hence, this
petition was filed on 23-9-2003.

(b) The complaints, in Criminal Application Nos. 3191 and 3192 of 2004 were
filed in December, 2003 against the petitioner. He was summoned to appear in
both the complaints before the trial Court on 15-3-2004. The petitioner engaged
an Advocate who could not appear when the matter was called out and as a result
of which NBW was issued by the learned Magistrate on 15-3-2004. The Advocate on
the very day made an application and prayed for a stay to the NBW until the next
date, i.e. 10-5-2004. The stay was granted as prayed for. The application was
filed on 8-5-2004 for cancellation of NBW, since it was not possible for the
petitioner to appear before Court on 10-5-2004. On 8-5-2004, the concerned
Magistrate was on leave and hence the application was moved before the in-charge
Court, which directed the petitioner to move before the concerned Court on
10-5-2004 itself. On 10-5-2004, the petitioner was granted exemption by
extending the order of stay to NBW granted earlier. On 14-5-2004, the learned
Magistrate cancelled the NBW and directed the petitioner to execute a bond. On
17-5-2004, the matter was adjourned to 12-7-2004 and on that date the learned
Magistrate issued NBW after rejecting the application filed by the petitioner's
advocate seeking personal exemption. Hence, these petitions.

(c) In Criminal Application No, 3392 of 2004, the complaint was filed on
1-4-2003. The process was issued on 29-8-2003. The petitioners were summoned to
appear on 18-12- 2003. The petitioners did appear on 18-12-2003. However, the
Board was discharged to 6-3-2004. On 6-3-2004, though the petitioners were
required to wait in the Court for 2 1/2 hours, the matter did not reach and the
Board was once again discharged and the matter stood adjourned to 7-8-2004. On
7-8-2004 the petitioner, who is 62 years old, filed an application for exemption
through his Advocate. However, it was rejected and on the request of the
Advocate for the complainant, NBW was issued. In this case, out of the four
accused, only two accused were served. The petitioners reached the Court on very
day and through their Advocate applied for cancellation of the warrant. The
learned Magistrate insisted to serve a copy of the application seeking
cancellation of the warrant on the complainant. The Advocate for the petitioners
made an attempt to serve a copy of the application on the Advocate for the
complainant who refused to accept on the ground that the complainant had already
left the Court. The learned Magistrate did not take the application on record
and in this backdrop the petitioners have approached this Court by way of the
instant application.

(d) In Criminal Application No. 2129 of 2004, the complaint was filed in
August, 1998. The petitioner claims that he appeared almost on all dates either
personally or through his Advocate. Initially, a bailable and thereafter non
bailable warrant was issued to secure his presence though his Advocate used to
attend every date of hearing before the learned Magistrate. Since the
petitioner, who is from Mumbai, could not appear before the learned Magistrate,
the order under Section 82 of the Code came to be passed on 19-7-2004. Hence,
this application.

3. It is against a backdrop of these facts, I would like to consider the
question of law raised by the learned Advocates appearing for the parties. I
heard all the learned counsel appearing in these matters for quite some time.
The leading arguments were advanced by Mr. Jha and Mr. Siddiqui, learned counsel
appearing for the petitioners. The submissions of the learned counsel for the
parties, in brief, are as follows.

(a) The accused in the cases under Section 138 of the Act need not remain
present in the trial Court on every date of hearing and that the Court should
exercise discretionary powers conferred on it under Sections 205 and 317 of the
Code to grant personal exemption to the accused. Mr. Jha, learned counsel, took
me through the various judgments of the Apex Court and High Courts. He placed
heavy reliance on the judgment of the Apex Court in Bhaskar Industries Ltd. vs.
Bhiwani Denim and Apparels Ltd. and Ors., and contended that the personal
attendance of the accused can be dispensed with throughout or at any particular
stage of the proceedings in a summons case. Reliance was also placed on the
judgment of this Court in Shri Walmik s/o Deorao Bobde vs. The State of
Maharashtra and Anr., 2001 All MR (Cri) 1731 to contend that NBW should
ordinarily be issued as a last resort. He further placed reliance upon the
judgments of Calcutta High Court in Ajit Kr. Chakraborty and Ors. vs. Serampore
Municipality, 1989 Cri.LJ.523 and of Orissa High Court in Ganesh Choudhury vs.
Harish Chandra Misra, 1998 Cri.LJ.2412. My attention was also invited to the
judgment of the Apex Court in Chandu Lal Chandraker vs. Puran Mal and Anr., 1988
(Supp) SCC 570 to contend that in the said case in view of the accused's
statement before the Apex Court that he would not make any statement under
Section 313 of the Code and would not raise any question of prejudice, if any,
caused to him due to non-exemption, his request for personal exemption before
the trail Court was granted by the Apex Court.

(b) Mr. Siddiqui, apart from the judgment relied upon by Mr. Jha, learned
counsel for the petitioners, invited my attention to the judgments of the Apex
Court in U. P. Pollution Control Board vs. Mohan Meakins Ltd., and in R.
Annapurna vs.

Ramadugu Ananth Krishna Sastry, and contended that if any of the accused
applies for dispensing with his personal appearance in the Court, the trial
Court can exempt him from continuing to appear in the Court by imposing any
conditions which the Court deems fit. Such conditions can include, inter alia,
that a counsel on his behalf would be present when the case is called out, that
he would not dispute his identity as the particular accused in the case and that
he would be present in the Court when his presence is imperatively needed.

4. Keeping in view the importance of the issue involved in these petitions, I
called for some information from the registry, which would be relevant and
material to address the question raised in these petitions and appreciate the
submissions of the learned counsel for the parties better. Let me quote the
facts and figures furnished by the registry about pendency of the proceedings
under Section 138 of the Act. In the Metropolitan City of Mumbai, apart from
other summons cases, pendency of complaints filed under Section 138 of the Act
is 93,631 and in rest of the State of Maharashtra 2,28,249 cases. For dealing
with these cases in Mumbai, we have 41 judicial officers and outside Mumbai 492.
Their average disposal per month in Mumbai is 57.24 percent and in the Courts
outside Mumbai it is hardly 9.24 percent. These figures would show the alarming
situation of the huge pendency of the cases under Section 138 of the Act in the
State of Maharashtra.

(a) It is useful to note the observations of the Apex Court made while
dealing with the proceedings under Section 138 of the Act in Bhaskar Industrial
Ltd. case (supra). It has been observed that "These are days when prosecutions
for the offence under Section 138 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."

5. It is common knowledge and general experience that due to heavy workload
of cases and huge pendency of complaints pending before the Courts of
Magistrates, enquiries or trials in criminal cases take long time than one
expected. I am informed that on daily board of different Courts, a large number
of cases are fixed on a single day which result in congestion of Court work,
litigants and advocates at a given point of time. This further results into
undue hardships to advocates and litigants. Though the cases are placed on
board, they do not reach for an enquiry or trial for months and years together.
For variety of reasons the Courts cannot proceed with the cases when they are
fixed for trial or for final argument. Resultantly, on most of the occasions,
the dates are given to the parties either by the Courts or on some occasions by
the Bench Clerk, particularly when the Court discharges the board. On every
date, however, parties require to attend the Court and mark their presence.
Parties go to the Court, remain sitting outside the Court from morning to
evening waiting for the call of their cases but without effective hearings for
want of time. It may be noted that most of the Courts do not have proper
infrastructure and/or facilities for the clients, such as waiting room, drinking
water and toilets etc. This causes tremendous hardships not only to the parties
but also to the staff in the Court and the Registry. If accused do not attend
the Court on the given date, the Court issues bailable or non-bailable warrant
even if the advocate appears and applies for exemption.

(a) It is also a general experience that a complainant and his advocate,
instead of proceeding with the case, pray for issuance of NBW against the
accused if he does not appear. Resultantly, the Court, even if is in a position
to proceed with the matter, instead of doing so issues bailable or NBW against
the accused which unnecessarily causes further delay in disposal of the case. In
this backdrop it has become imperative to consider as to whether the Court
should be generous and liberal in exercising the powers conferred under Sections
205 and 317 of the Code granting exemption to the accused from personal
appearance without causing prejudice to the prosecution proceedings.

6. Sections 205 and 317 of the Code give wide powers to the Courts for
dispensing with the personal attendance of the accused at every stage of the
case. The Apex Court in Bhaskar Industries Ltd (supra) while dealing with
Section 205, has observed 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 a plea of the accused even when his counsel makes such plea
on behalf of the accused in a case where personal appearance of the accused is
dispensed with. It would be useful to quote Section 205 of the Code. It reads
thus :

"205. Magistrate may dispense with personal attendance of accused. -

(1) 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.

(2) But the Magistrate inquiring into or trying the case may, in his
discretion at any stage of the proceedings direct the personal attendance of the
accused, and if necessary, enforce such attendance in the manner hereinbefore
provided."

Sub-section (1) of Section 205 empowers the Magistrate to dispense with
personal attendance of the accused and permit him to appear by his pleader.
Subsection (2) provides that the Magistrate can exercise his discretion at any
stage of the proceedings including the first appearance in the case and direct
the personal attendance of the accused, if necessary. The Magistrate is expected
to see whether there is any justification for refusing the accused's prayer for
exemption from personal attendance and must indicate convincing reason for
rejecting that prayer.

(a) Section 317 of the Code reads thus :

"317. Provision for inquiries and trial being held in the absence of
accused in certain cases. ~ (1) At any stage of an inquiry or trial under this
Code, if any Judge or Magistrate is satisfied, for reasons to be recorded, that
the personal attendance of the accused before the Court is not necessary in the
interest of justice, or that the accused persistently disturbs the proceedings
in Court, the Judge or Magistrate may, if the accused is represented by a
pleader, dispense with his attendance and proceed with such inquiry or trial in
his absence, and may at any subsequent stage of the proceedings, direct the
personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if
the Judge or Magistrate considers his personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded by him, either adjourn such inquiry
or trial, or order that the case of such accused be taken up or tried
separately."

Section 317 of the Code, thus, empowers the Court to dispense with the
personal attendance of an accused at any stage of the enquiry provided he is
represented by a counsel and while so doing may direct the personal attendance
of such accused at any subsequent stage of the proceedings. Sub-section (2) of
Section 317 provides that if the accused is not represented by a pleader or if
the Judge or Magistrate considers his personal attendance necessary, he may, if
he thinks fit and for reasons to be recorded by him, either adjourn such inquiry
or trial or order that the case of such accused be taken up or tried separately.

(b) It is thus clear, that the powers under Section 317 could be and should
be exercised only if a Court is satisfied that in the interest of justice the
personal attendance of an accused need not be insisted and that the Court has
the power to dispense with the attendance of that accused. 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 a particular
accused in the case, and that a counsel on his behalf would be present in the
Court and that he has no objection for recording a plea on his behalf of a
counsel and in taking evidence in his absence. This precaution is necessary for
further progress of the proceedings.

(c) Sections 205 and 317, if read jointly, they make it clear that the
Court has wide powers to dispense with the personal attendance of the accused at
all stages of the proceedings. Section 317 covers the stages after the
commencement of inquiry or trial. Section 205 deals with the stage at
commencement of the proceedings before the magistrate thereby indicating that in
appropriate cases the presence of the accused could be dispensed with even at
the initial stage including the first appearance and permit him to appear
through an advocate. When the presence of an accused is imperatively needed at
any subsequent stage of an inquiry or trial the Court is armed with sufficient
powers to secure his presence in such case, it may be stated that no hard and
fast rule can be laid down for the exercise of the power under Sections 205 and
317. Each case will have to be considered after giving due weight to attendant
circumstances. I am of the considered opinion, that ordinarily, the Court should
be generous and liberal in exercising the powers conferred under Sections 205
and 317 and grant exemption to the accused from personal appearance, except when
the presence of the accused is imperatively needed. The court should also bear
in mind the nature of accusation and the prejudice, if any, likely to be caused
to the prosecution or the complainant if personal attendance is dispensed with
or to the accused if personal attendance is made compulsory.

7. The Apex Court in Bhaskar Industries Ltd. (supra) has elaborately dealt
with all the relevant provisions of the Code while dealing with the issue of
dispensing with personal attendance of an accused in criminal Courts in the
interest of justice. The observations of the Apex Court in paragraphs 17, 18 and
19 could be useful. Paragraphs 17, 18 and 19 read thus :

"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 the proceedings including examination of the witnesses.

18. A question could legitimately be asked - 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 with the
case? We may point out that 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 a 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.

19. The position, therefore, boils down to this: 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 on
him, and the comparative advantage would be less. Such discretion need be
exercised only in rare instance 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 interest of justice. However, the Magistrate
who grants such benefit to the accused must take the precautions enumerated
above, as a matter of course. We may reiterate that 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."

8. The Apex Court in Chandu Lal Chandraker case (supra), made reference to
Sections 205 and 313 of the Code and observed that even the statement of the
accused under Section 313 of the Code in a given case, could be dispensed with
if he requests and gives an undertaking to the effect that he would not raise
any question of prejudice, if any, caused to him due to non-examination under
Section 313 at any subsequent stage of trial, appeal, or revision. In that case
after recording the statement of a counsel on behalf of the accused that he
shall not raise any question of prejudice, if any, caused to him on account of
his non-examination under Section 313, held that it was not necessary for the
accused to appear before the trial Court. While passing such order, the order of
the trial Court and the High Court directing the appellant to appear before the
trial Court for making statement under Section 313 of the Code was set aside by
the Apex Court.

9. At this juncture, it would be advantageous to make reference to some other
provisions in the Code. The Second Schedule of the Code provides Form No. 1,
i.e. Form of Summons to an accused person, as contemplated under Section 61 of
the Code. Form No. 1 reads thus:

"Summons to an accused person

To, (name of accused) of (address)

WHEREAS your attendance is necessary to answer to a charge of (state
shortly the offence charged), you are hereby required to appear in person (or by
pleader, as the case may be) before the (Magistrate) of........on the......day
of......Herein fail not.

Dated, this - day of------, 19

(Seal of the Court) (Signature)"

It clearly requires an accused to appear in person or by a pleader. It does
not insist that the accused should appear in person on receipt of summons in the
case.

(a) Section 273 of the Code is also useful. It says that except as
otherwise expressly provided, all evidence taken in the course of the trial or
other proceeding, shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his pleader. Section
273 requires that the evidence be taken in the course of trial in the presence
of the accused and that is why physical presence of an accused is insisted upon
in the trial. There does not seem to be any other reason contemplated or
envisaged under the Code requiring physical presence of the accused in the
trial. The legislature in its wisdom appears to have introduced Section 273 of
the Code for the benefit of the accused so that during the course of the trial
or other proceedings, he can assist his advocate or safeguard his interest.
Physical presence is not insisted upon because it is so desired by the
complainant. The section is, therefore, introduced for the benefit of the
accused and not for causing hardships or inconvenience to the accused. It is,
therefore, necessary that in a case where the accused himself applies to the
Court to be exempted from personal appearance, than the Court should grant such
request unless it is of the opinion that in the interest of justice it is
necessary that the accused should be present throughout the course of trial or
unless there are some other good reasons for directing the presence of the
accused throughout the course of the trial. It is, however, necessary in such
situation for the accused to give an undertaking to the Court that in his
absence his Advocate on record shall appear on every date of hearing and see to
it that under any circumstances progress of the proceedings is not hindered.

(b) In a given case that if an accused personally gives an undertaking
before the Court that he does not wish to answer any of the questions which
would be put to him by the trial Court under Section 313 of the Code and he
further states that he will not raise question of prejudice, if any, caused to
him on account of his non-examination at subsequent stage of the trial, in
appeal or revision, the Court may, in a given case, grant him such permission
and exemption from appearing before the trial Court till his case is disposed of
by the Court.

(c) Section 87 of the Code provides issue of warrant in lieu of, or in
addition to, summons. Section 87 of the Code reads thus :

"A Court may, in any case in which it is empowered by this Code to issue a
summons for the appearance of any person, issue, after recording its reasons in
writing, a warrant for his arrest - (a) if, either before the issue of such
summons, or after the issue of the same but before the time fixed for his
appearance, the Court sees reason to believe that he has absconded or will not
obey the summons? or (b) if at such time he fails to appear and the summons is
proved to have been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure."

Thus, the power conferred under this provision is sufficient enough to
secure presence of an accused when his presence is imperatively needed or
becomes indispensable for the progress of the case. Under this provisions, it is
necessary that warrant of arrest for securing presence of the accused be issued
only in the following eventualities and, that to, by recording its reasons in
writing. Firstly, if Court sees reason to believe that he has absconded or will
not obey the summons and, secondly, if without reasonable excuse, he fails to
appear in spite of service of summons. His appearance through a counsel on
receipt of the summons would, however, be sufficient compliance of the summons
or that could be treated as abeyance of the summons. In other words, on receipt
of summons, the accused need not personally appear before the Court unless so
specifically directed by the Court for the reasons recorded to that effect by
the Court. Even the invocation of the provisions of Sections 82 and 83 of the
Code, should ordinarily be as a last resort.

(d) A reference to Section 143 of the Act, at this stage, would be useful.
It deals with power of Court to try cases summarily. It provides that
notwithstanding anything contained in the Code, all offences under Chapter XVII
of the Act shall be tried by a Judicial Magistrate of the first class or by a
Metropolitan Magistrate and the provisions of Sections 262 to 265 (both
inclusive) of the said Code shall, as far as may be, apply to such trials. Sub-
section (3) of Section 143 provides that every trial under this section shall be
conducted as expeditiously as possible and an endeavour shall be made to
conclude the trial within six months from the date of filing of the complaint.
It is general experience that Courts for variety of reasons can hardly, observe
the time frame under this provision. One of the main reasons, in my opinion, is
the absence of an accused on the date of hearing of the case. Considerable time
of the Courts is wasted in securing presence of the accused. The Courts, in such
cases, issue bailable or non-bailable warrants and as a result of which it
causes further delay in disposal of cases/complaints. Instead, if the Courts
proceed with the cases by taking precaution, which I would be indicating in the
next paragraph, in my opinion, that would help speedy disposal of cases,
reducing a huge pendency and that would also facilitate the parties to arrive at
a settlement, if any, in the complaints under Section 138 of the Act at an early
stage. It may be noticed that Section 147 of the Act has made every offence
punishable under this Act compoundable.

10. A large number of cases are being filed in this Court seeking
cancellation of NBW issued either while rejecting the application for exemption
or for non-appearance of the accused on one date of hearing even if Advocate for
the accused appears on his behalf. It is also observed that the complaints under
Section 138 of the Act are being filed against the companies in which all the
directors are being arraigned as accused and their presence is being insisted on
every date of hearing and no proceedings are being taken up in their absence. It
is further observed that the progress of the cases under Section 138 impedes for
want of their presence. The fact remains as to why their presence is being
insisted on every date of hearing. The idea is to see that the progress of the
case is not hindered for want of presence of the accused or even the complainant
for that matter. Keeping this in view and against a backdrop of the observations
made in the foregoing paragraphs, I deem it appropriate to issue the following
directions to the Courts trying summons cases and in particular, cases under
Section 138 of the Act.

(i) Ordinarily, the Court should be generous and liberal in exercising
powers under Sections 205 and 317 of the Code and grant exemption to the accused
from personal appearance unless presence is imperatively needed or becomes
indispensable. While considering the application for exemption, the Court should
also bear in mind the nature of accusations and prejudice, if any, likely to be
caused to the prosecution or the complainant, if personal attendance of the
accused is dispensed with or to the accused if personal attendance is insisted
upon, as case may be.

(ii) If an accused makes even the first appearance through a counsel, he
may be allowed to do so.

(iii) If an accused is seeking permanent exemption in a case, the Court,
while dealing with such application, should take precautions that the accused
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 the Court on all dates of hearings and that he has no
objection for recording a plea on his behalf of a counsel and in taking evidence
in his absence.

(iv) While dealing with the application seeking permanent exemption from
appearing in the case as aforestated, if, the Court for any reasons is of the
opinion that such exemption should not be granted, it may do so by recording or
indicating reasons for rejecting such prayer.

(v) It is open for the Court to grant exemption which is either permanent
or for a specific period, depending upon the facts of each case, on the
conditions as it deems fit and proper, requiring the accused to file an
undertaking as indicated earlier.

(vi) In a given case, the Court may record a plea of the accused even when
his Advocate makes such plea on his behalf in a case where personal appearance
of the accused is dispensed with on his furnishing the undertaking in terms of
Clause (iii). However, it is open for the Court to refuse such permission for
reasons to be recorded separately.

(vii) The Court should avoid issuance of non-bailable warrant in the first
instance to secure presence of the accused facing trial and it should be applied
as a last resort.

(viii) If a counsel for the accused fails to appear in the matter and his
absence impedes further progress of the proceedings including examination of
witnesses, the Court may resort to any other course as may be available under
the provisions of the Code to secure presence of the accused, including issuance
of NBW and may cancel the order of exemption and in such case may or may not
grant exemption any more.

(ix) The Court should avoid requiring the accused or his Advocate to apply
for exemption on every date of hearing.

(x) While exercising the powers to grant exemption, under any circumstance,
the Court shall not compromise with the further progress of the proceedings and
see to it that the presence or absence of either of the parties does not impede
the proceedings.

(xi) In a given case, similar parameters be applied for granting exemption
to the complainant if his absence is not likely to cause prejudice, if any, to
the accused or hinder the progress of the case/complaint.

11. Insofar as the instant five petitions are concerned, the orders impugned
shall remain stayed until the concerned Magistrates pass appropriate orders
keeping in view the observations made in this Judgment. The learned Magistrates
to pass appropriate orders within two weeks from the date of receipt of this
judgment. The petitioners are directed to produce a copy of this judgment before
the concerned Magistrate within four weeks from today.

12. In the result, these petitions are disposed of.

An authenticated copy of this order may be made available to the parties.