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  Judgement - 08KLC-2774
 
   
   
 

Before R.Basant, J)
The 4th day of September 2008

Party Array / Case No.


                                    Crl.MC.No. 1977 of 2007

 

                             Jain Babu           :         Petitioner

 

                                                     Vs

 

                          K.J.Joseph & anr   :   Respondents

Judgement



                                                   O R D E R

     

    R.Basant, J

     

     

          Can there be a criminal offence involving no moral

     

    turpitude at all?      Is the offence under Section 138 of the

     

    Negotiable Instruments Act one such offence?                      Is a person

     

    accused of an offence, in which moral contumaciousness is not

     

    significant, entitled to a more humane and less onerous trial

     

    procedure? Should an accused facing indictment under Section

     

    138 of the Negotiable Instruments Act be compelled to endure

     

    the tedium and trauma of a regular elaborate criminal trial? Is it

     

    possible for the system to simplify procedure and achieve the

     

    legislative    goals     without         inflicting        such   unnecessary

     

    inconvenience and difficulties on the indictee atleast in such less

     

    serious crimes?      These questions are thrown up in this case

     

    where the petitioner, a woman, laments that she, who faces

     

    indictment under Section 138 of the Negotiable Instruments Act,

     

    is entitled to a fairer deal from the system.

     

          2.    The petitioner, a woman in                     her late forties, a

     

    housewife who has her husband employed abroad having two

     

    children - a son and a daughter studying for the engineering

     

    course and the B.A.M.S course, and a permanent resident of

     

    Alappuzha has received summons from the Judicial Magistrate of

     

    the First Class, Hosdurg wherein she has been called upon to

     

    appear in person to face the indictment. She submits that she is

     

    innocent.     The cheque has been misused.         The petitioner

     

    complains that she is unable to proceed all the way to that

     

    distant court.    She prays that she may be exempted from

     

    personal appearance and her counsel may be permitted to

     

    represent her and conduct the case. The counsel on her behalf

     

    submits that there is urgent need of general directions under

     

    Sections 482 or 483 of the Code of Criminal Procedure to save

     

    the petitioner as well as others similarly placed, from their

     

    predicament of being compelled to appear in person before

     

    court, getting enlarged on bail, executing bonds with sureties,

     

    personal appearance on all dates of posting, appearance for

     

    examination under Section 313 Cr.P.C and ultimately to receive

     

    judgment.      The counsel contends that it is not necessary for a

     

    humane and user friendly system to resort to such cumbersome

     

    procedure. It is prayed that directions may be issued which will

     

     

    help the petitioner as well as many others similarly placed facing

     

    identical predicament to save them of the unnecessary pain

     

    inflicted on them by such mindless injustice - of beaten track

     

    procedural hassles, trammels and trappings.

     

          3.    The contentions raised did appear to me to be

     

    impressive. Detailed arguments were heard in identical cases

     

    also in which the same question had arisen for consideration.

     

    Adv.Sri.G.Priyadarsan Thampi appearing for the petitioner has

     

    advanced this contention with conviction. Sri.N.Ratheesh who

     

    appears in a similar matter W.P.C 20721/2007 has also advanced

     

    his arguments. Perceiving the need for assistance of an amicus

     

    curiae Sri.S.Rajeev, a promising young counsel was requested to

     

    assist the Court. Detailed arguments have been advanced. All

     

    counsel pray that directions may be issued which shall bind all

     

    courts so that procedure in the trial of 138 (and similar) cases in

     

    the State can be simplified and indictees can be saved of the

     

    unnecessary and avoidable trauma and tedium.

     

          4.    First of all the learned counsel have drawn my

     

    attention to various precedents having a bearing on the question.

     

    I shall advert to them specifically later if and when necessary.

     

    But it must now be stated that my attention has been drawn to

     

    the following binding precedents.

     

          1.    M/s.Bhaskar Industries Ltd. v. M/s.Bhiwani Denim and

                Apparels Ltd. and Others [2001(3) KLT 307 SC]

     

          2.    Helen Rubber Industries & Others v. State of Kerala &

                Others [1972   KLT 794]

     

          3.    Dinesan v. Baby [1981 KLT SN 65 Case No.120]

     

          4.    Mathew v. State of Kerala [1986 KLT 128]

     

          5.    Bhanujan v. Jayabhanu [1993(2) KLT 889]

     

          6.    Raman Nair v. State of Kerala1999(3) KLT 714

     

          7.    Alice George vs. Deputy Superintendent of Police

                [2003(1)KLT 339]

     

          8.    Sasikumar v. State of Kerala

                [2007(3) KLT SN 48 (C.No.64)

     

     

          5.    The learned counsel submit that there is urgent

     

    necessity to clarify that the very fact that the offence is one

     

    under Section 138 of the Negotiable Instruments Act must itself

     

    be reckoned as sufficient reason by the Magistrate to dispense

     

    with the personal attendance of the accused.        The learned

     

    counsel rely on Section 205 Cr.P.C which reads as follows:

     

                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."

                                          (emphasis supplied)

     

          6.    The learned counsel submit that the line of decisions

     

    referred above make it clear that powers under Section 205

     

    Cr.P.C to exempt an accused from personal appearance are to be

     

    invoked by a Magistrate when the offence alleged is technical in

     

    nature or does not involve moral turpitude. The learned counsel

     

    thereupon relies on the two decisions of this court to contend

     

    that the offence under Section 138 of the Negotiable

     

    Instruments Act is definitely one involving no moral turpitude.

     

    They are Saseendran Nair v. General Manager [1996(2) KLT

     

    482] and K.S.R.T.C v. Abdul Latheef [2005(3) KLT 955]. Both

     

    decisions were rendered by Division Benches exercising

     

    jurisdiction in service law. But it has been clearly held that an

     

    offence under Section 138 of the Negotiable Instruments Act

     

    does not deserve to be described as an indiscretion involving

     

    moral turpitude. The learned counsel hence contend that the

     

    very fact that the offence is one punishable under Section 138 of

     

    the Negotiable Instruments Act must itself persuade the courts

     

    to invoke the jurisdiction under Section 205 Cr.P.C to dispense

     

    with the personal appearance of the accused.

     

          7.    The crux or the gravamen of the offence under

     

    Section 138 of the Negotiable Instruments Act is the dishonour

     

    of the cheque on the ground of insufficiency of funds. But the

     

    right to prosecute would accrue only if a demand made for

     

    payment does not result in payment of the amount within the

     

    stipulated time.   In this view of the matter, it is a technical

     

    offence and virtually the core of the liability to be prosecuted for

     

    the offence is the inability/refusal of a person to make payment

     

    when the demand is made consequent to dishonour. In this view

     

    of the matter, I am satisfied that the offence under Section 138

     

    of the Negotiable Instruments Act is both technical as also one

     

    involving no moral turpitude.

     

          8.    Crimes traditionally are more serious indiscretions in

     

    human behaviour committed by individuals which the sovereign

     

    wants to avoid, eliminate and deter by infliction of punishment.

     

    The sovereign prerogative of infliction of punishment          - of

     

    deprivation of life, liberty and property (and infliction of pain in

     

    some crude systems), is to be resorted to only when the

     

    indiscretion alleged is grossly contumacious and culpable. It is

     

    in this view of the matter that traditional criminal law insisted

     

    that mensrea - a guilty mind, must be there in all crimes. Crimes

     

    of yester years could never be innocent and guilt free infractions

     

    of the expected ideal code of human behaviour. One needed no

     

    knowledge of the laws in the past to ensure that he does not

     

    trespass into the zone of crime. Inherent and entrenched human

     

    concepts of righteousness in the past ensured that a person shall

     

    not commit the traditional crimes. He did not have to open law

     

    books to know that he should not murder another; that he should

     

    not maim another; that he should not deceive another; that he

     

    should not thieve another's property or that he shall not commit

     

    adultery.     Traditional law making insisted that the graver

     

    indiscretions alone can be declared to be crimes and they alone

     

    can attract punishment. In democratic law making also public

     

    opinion - norms prevalent among the polity, should reckon the

     

    conduct as so abhorrent and offensive before such conduct can

     

    be held to amount to and be declared a crime and worthy of the

     

    consequence of punishment - of deprivation of life, liberty and

     

    property.

     

          9.    Every criminal of yester years was undoubtedly a

     

    moral offender. He was treated with disdain and contempt. He

     

    was assumed to be a gross deviant. Society had to be protected

     

    from him. His place was prison - whether as an under trial or

     

    later. If he were to come out he was likely to be a menace to

     

    society. He therefore must offer bail. He must be personally

     

    present before court on all dates. An attitude of distrust, doubt

     

    and suspicion against him was always there which essentially

     

    arose from the gravity of the deviant behaviour - crime, which

     

    was alleged against him.    This negative attitude against the

     

    criminal can be seen in all criminal law systems - native and

     

    alien, of the past.

     

          10. But modern societies have changed their attitudes to

     

    the offender. 'Hate the crime and not the criminal' is the axiom

     

    of the modern criminal jurisprudence. Attitude of the law and

     

    system to the criminal is changing. The justice delivery system

     

    and the courts are adopting a more humane, reasonable and

     

    compassionate attitude to even the traditional criminal - both in

     

    substantive and procedural aspects.

     

          11. There is one more important reason why the attitude

     

    of the system, the law, the courts and the society to the criminal

     

    must change. Crimes today - the statutory crimes, are

     

    qualitatively different indiscretions. Modern societies in their

     

    quest to ensure change of societal attitudes, behaviour and

     

    culture have been freely resorting to the tool of the penal law for

     

    social engineering.     Not only to prevent grossly abhorrent

     

    behaviour but also to bring about future healthy changes of

     

    human attitudes and behaviour in societies, modern sovereigns

     

    have been making use of the laws - even the penal law. Law is a

     

    powerful tool of social engineering and societal transformation.

     

    The impatient elite in society who dream of ideal refined human

     

    behaviour in the polity have been insisting on conduct being

     

    made culpable even before that norm of behaviour is wholly

     

    accepted and entrenched in society.          There is consequent

     

    diffidence among the polity. My inherent sense of morality acceptable

     

    to the society around me is not at times sufficient to keep me away

     

    from the zone of crime. I must read the law books and update

     

    myself on the statutes and rules so that I do not become a

     

    criminal. It may be inevitable; but the plight of the morally

     

    innocent individual caught in the dilemma cannot be ignored by

     

    the system.

     

          12. Non-maintenance of registers in employment, disposal

     

    of waste in non-specified areas, giving your child in marriage

     

    before attainment of a specific age, inability/refusal to pay

     

    money due under a dishonoured cheque, unnecessary and

     

    uncharitable reference to the caste of an individual in the course

     

    of conversation in public view and a host of other pieces of

     

    conduct which till yesterday was not even morally wrong or was only

     

    an innocent indiscretion is today made a criminal offence exposing the

     

    citizen to the risk of being branded a criminal.   Consequently he is

     

    exposed to unfriendly and hostile procedural wrangles. This is unjust.

     

    This is unfair. This is unreasonable. Correct the deviant conduct by

     

    imposing the punishment stipulated by law. But avoid the tedium and

     

    trauma of an oppressive procedure against the "innocent criminal".

     

    Be humane to him atleast in the manner in which he is treated

     

    before he is punished or exonerated. Do not oblige him to be in

     

    the same bracket as the morally deviant - ordinary traditional

     

    criminal. Just, fair and reasonable procedure, a procedure which

     

    is not capricious, unreasonable, arbitrary and oppressive may be

     

    followed. Right to life under Article 21 of the Constitution of

     

    India must oblige the courts also to follow a procedure which is

     

    just, fair and reasonable while dealing with such criminals. If

     

    that is accepted, the unnecessary insistence on personal

     

    appearance before courts, entering on bail, executing bond with

     

    sureties, non-bailable warrants chasing him if he does not appear

     

    on all dates of posting, the personal appearance for 313

     

    examination, appearance to receive judgments        etc. can and

     

    must be avoided, submit the learned counsel.

     

          13. I find the submissions to be absolutely justified. There

     

    is great need for rationalising, humanising and simplifying the

     

    procedure in criminal courts with particular emphasis on the

     

    attitude to the "criminal with no moral turpitude" or the criminal

     

    allegedly guilty only of a technical offence.       Without any

     

    hesitation I include Section 138 of the Negotiable Instruments

     

    Act in that category of offences.

     

          14. The question then to be considered is whether

     

    dispensing with the personal appearance of an accused

     

    throughout the trial in a prosecution under Section 138 of the

     

    Negotiable Instruments Act (a summons trial) would create any

     

    difficulties in the progress of the cases and would render a just,

     

    fair, expeditious and efficient trial difficult or impossible. I shall

     

    consider the progress of a 138 prosecution from the moment of

     

    cognizance to the execution of the sentence in an attempt to find

     

    out whether a direction to dispense with the presence of an

     

    indictee in a 138 proceedings would create any difficulties or

     

    insurmountable obstruction to the trial.

     

          15. Cognizance is to be taken in a private complaint under

     

    Chapter 15 when complaints are made to Magistrates. After

     

    examination of the complainant and his witnesses, if any, present

     

    under Section 200 Cr.P.C or after proceeding to the enquiry

     

    under Section 202 Cr.P.C, a decision is to be taken under

     

    Section 203 Cr.P.C whether there is sufficient ground for

     

    proceeding. If there is no sufficient ground for proceeding, the

     

    complaint entails dismissal under Section 203 Cr.P.C.          But if

     

    there are sufficient grounds for proceeding, issue of process

     

    results under Section 204 Cr.P.C. Under Section 204 Cr.P.C in a

     

    summons case, a summons alone shall be issued for procuring

     

    the attendance of the accused. It is at this stage that Section

     

    205 Cr.P.C comes into play.         A Magistrate, after taking

     

    cognizance, when he chooses to issue summons in a prosecution

     

    under Section 138 of the Negotiable Instruments Act, must

     

    under Section 204(1)(a) Cr.P.C choose to issue only a summons

     

    and at that stage Section 205 Cr.P.C comes into play. Instead of

     

    issuing a summons obliging the accused to appear in person, the

     

    Magistrate can, "if he sees reasons so to do", dispense with the

     

    personal attendance of the accused and permit him to appear by

     

    his pleader. At the stage of issue of summons in all prosecutions

     

    under Section 138 of the Negotiable Instruments Act, Section

     

    205 Cr.P.C can certainly be followed by the learned Magistrates

     

    in their discretion. There is no impediment whatsoever for a fair

     

    and efficient trial if only a summons under Section 205 Cr.P.C is

     

    issued in all prosecutions under Section 138 of the Negotiable

     

    Instruments Act.

     

          16. Even assuming that a normal summons was issued

     

    under Section 204 Cr.P.C, it is by now trite that at any later

     

    stage before actual appearance of the accused before the

     

    learned Magistrate or after such appearance, powers under

     

    Section 205 Cr.P.C can be invoked. If there be any doubt on this

     

    aspect, it is only necessary to consider paragraph 3 of the

     

    decision rendered by Hon'ble Mr.Justice K.V.Sankaranarayanan

     

    in Raman Nair v. State of Kerala [1999(3) KLT 714] which I

     

    extract below.

     

          "It is contended by learned counsel for the petitioner

          that this right to exempt must be exercised by the

          Magistrate when the summons is issued. If summons

          is already issued, the accused has necessarily to

          appear and then seek bail. But there is nothing in

          S.205(1) to indicate that the power to grant exemption

          from personal attendance cannot be exercised after

          issuance of summons. The Section only means that in

          cases where the Magistrate issues a summons, he can

          dispense with the personal attendance of the accused.

          Such exemption is not expected in cases where the

          Magistrate decides to issue warrant. The decisions on

          the point indicate that the right can be exercised on

          an application. Such applications can be filed only

          when summons is issued and not earlier.         Some

          decisions even go to the extent that warrants issued

          can be withdrawn and exemption granted under S.205

          Cr.P.C on application of the accused."

                                          (emphasis supplied)

     

     

          17. It is thus very clear that at the time of issuing

     

    summons or at any time thereafter either before or after the

     

    personal physical appearance of the accused before the court

     

    and even when a warrant of arrest had earlier been issued

     

    powers under Section 205 Cr.P.C can be invoked.

     

          18. We now proceed to the next stage. The accused has

     

    to enter appearance through counsel in response to the

     

    summons issued under Section 205 Cr.P.C. After the accused

     

    enters appearance, particulars of offence must be read over to

     

    the accused under Section 251 Cr.P.C and his plea has to be

     

    recorded. The plea can be either one of guilty or one of not

     

    guilty. The next question is whether personal presence of the

     

    accused is invariably necessary for recording the plea of the

     

    accused.

     

          19. This question does not also admit of any doubt now in

     

    the light of the decision of this court in Noorjahan v. Moideen

     

    [2000(2)KLT 756]. Justice R.Rajendra Babu, after adverting to

     

    the precedents on the point, had categorically held in paragraph

     

    8 that even when the plea is one of guilty, such plea of an

     

    accused exempted under Section 205 Cr.P.C, advanced on his

     

    behalf by the counsel can be taken. The principle is stated in the

     

    following words.

     

          8.    "I am in full agreement with the above view

          taken by the Calcutta and Delhi High Courts. The

          above decisions would make it clear that in summons

          cases when the personal attendance of the accused is

          exempted under S.205 Cr.P.C, the plea of the counsel

          can be taken for and on behalf of the accused even if

          the plea is one of guilty."

                                         (emphasis supplied)

     

          20. There can hence be no doubt that the plea of an

     

    accused exempted under Section 205 Cr.P.C in a prosecution

     

    under Section 138 of the Negotiable Instruments Act (a

     

    summons case) can be recorded through his counsel. There can

     

    be no semblance of doubt on this aspect of the matter in the light

     

    of the above said binding precedent.

     

          21. We then come to the stage of recording evidence.

     

    Section 273 Cr.P.C mandates that evidence must be recorded in

     

    the presence of the accused. But the Section itself hastens to

     

    add that when his personal attendance is dispensed with, such

     

    evidence can be recorded in the presence of his pleader.

     

    Obviously, the reference was to dispensation of the personal

     

    presence of the accused under Section 205 Cr.P.C or Section 317

     

    Cr.P.C as the case may be. For clarity on this aspect, I extract

     

    Section 273 Cr.P.C below.

     

          273. "Evidence to be taken in presence of

          accused.-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."

                                           (emphasis supplied)

     

          22. In a case where personal appearance is dispensed

     

    with under Section 205 Cr.P.C, it is not normally necessary to go

     

    to Section 317 Cr.P.C and I am hence not adverting to the

     

    provisions of Section 317 Cr.P.C in any greater detail.     In a

     

    prosecution under Section 138 of the Negotiable Instruments Act

     

    ordinarily and normally a dispute regarding identity of the

     

    indictee is not likely to arise. His personal presence for the

     

    purpose of identification will normally be unnecessary. In an

     

    exceptional case where such dispute of identification is posed,

     

    appropriate direction under Section 205(2) Cr.P.C can always be

     

    issued by the court.

     

          23. It is now evident that the plea can be recorded and the

     

    evidence can be introduced in the absence of the accused and in

     

    the presence of his counsel, if he is exempted under Section 205

     

    Cr.P.C. We then come to the next stage - of examination under

     

    Section 313(1)(b) Cr.P.C.    The Section obliges that in every

     

    enquiry or trial, for the purpose of enabling the accused

     

    personally to explain any circumstances appearing in the

     

    evidence against him, the courts shall, after the witnesses of the

     

    prosecution have been examined and before he is called on for

     

    his defence, question him generally on the case. Precedents

     

    mandate that this is an invariable requirement in all cases; but

     

    the proviso to Section 313(1) Cr.P.C adds that in a case where

     

    the presence of the accused has already been dispensed with, the

     

    court may also dispense with his examination under Clause (b). I

     

    extract below Section 313(1) and its proviso.

     

          "313.Power to examine the accused.- (1) In every

          inquiry or trial, for the purpose of enabling the

          accused personally to explain any circumstances

          appearing in the evidence against him, the Court -

                (a)   may at any stage, without previously

          warning the accused put such questions to him as the

          Court considers necessary;

                (b)   shall, after  the   witnesses    for   the

          prosecution have been examined and before he is

          called on for his defence, question him generally on

          the case:

          Provided that in a summons-case, where the Court

          has dispensed with the personal attendance of the

          accused, it may also dispense with his examination

          under clause (b)."

                                         (emphasis supplied)

     

          24. It therefore is evident that in a prosecution under

    Section 138 of the Negotiable Instruments Act where personal

     

    appearance of the accused has been dispensed with under

     

    Section 205 Cr.P.C, his examination under Section 313(1)(b)

     

    Cr.P.C can also be dispensed with.          While exercising the

     

    discretion under the proviso, the Magistrate may direct or permit

     

    the filing of a statement, if any, by the accused to enable the

     

    accused to explain the circumstances against him. The interests

     

    of justice can be eminently satisfied by resort to such a course.

     

          25. At the stage of defence evidence, there is absolutely

     

    no obligation for the accused to personally appear. Section 273

     

    Cr.P.C will not apply at the stage of defence evidence as such

     

    evidence is not against the accused. At any rate, Section 273

     

    Cr.P.C permits exemption of the accused while evidence is

     

    recorded.

     

          26. We then come to the stage of pronouncement of

     

    judgment.     Section 353 Cr.P.C in Chapter 27 of the Code of

     

    Criminal Procedure deals with procedure to be followed for the

     

    pronouncement of judgment. Section 353(5) declares that if the

     

    accused is in custody, he shall be brought up before court for the

     

    pronouncement of judgment.        Sub-Section 6 which I extract

     

    below deals with the situation where the accused is not in

     

    custody.

     

          353. Judgment .-

          "(6): If the accused is not in custody, he shall be

          required by the Court to attend to hear the judgment

          pronounced, except where his personal attendance

          during the trial has been dispensed with and the

          sentence is one of fine only or he is acquitted:"

                                           (emphasis supplied)

     

          27. It is evident from Section 353(6) Cr.P.C that in a case

     

    where the judgment is one of acquittal or of a fine only, it is not

     

    necessary to insist on the personal presence of the accused to

     

    receive judgment.      Of course, if the sentence is one of

     

    imprisonment (substantive), personal presence of the accused

     

    may have to be insisted as the word used is "and" and not "or".

     

    Here again, Section 353(7) Cr.P.C makes it clear that

     

    pronouncement of the judgment in the absence of the accused

     

    does not vitiate trial at all. Moreover, in the light of the first

     

    proviso to Section 143(1) of the Negotiable Instruments Act, the

     

    Magistrate is entitled to impose a sentence of fine exceeding

     

    Rs.5,000/- notwithstanding Section 29 of the Cr.P.C and I must

     

    assume that, except in an exceptional case, it may not now be

     

    necessary for a Magistrate to contemplate imposition of a

     

    substantive sentence of imprisonment for an offence under

     

    Section 138 of the Negotiable Instruments Act. If the sentence is

     

    one of substantive imprisonment the accused can certainly be

     

    directed under Section 205(2) Cr.P.C to personally appear for

     

    receiving judgment.

     

          28. If a judgment of conviction and sentence, even if it be

     

    fine only, were to be pronounced in the absence of the accused,

     

    how is the sentence to be executed?       In the absence of the

     

    accused, even a sentence of fine or the default sentence cannot

     

    be executed and will not that create an impediment in the proper

     

    completion of trial?    This question is raised by some counsel.

     

    The same question appears to have been raised before and

     

    considered by Hon'Justice V.Khalid in Helen Rubber Industries

     

    & Others v. State of Kerala & Others [1972 KLT 794] in

     

    paragraph 20. I extract the same below:

     

          "20. The learned Magistrate has observed in one or

          two cases under review that it will not be possible to

          collect the fine imposed if the accused are exempted

          from personal attendance. The arms of law are long

          enough to get at an accused. The Magistrate should

          not forget that there are wide powers in his armoury

          to reach at the accused."

     

          29. It is pointed out that there may be an objection that

     

    without any bond having been executed and the petitioner having

     

    not appeared before the court at any stage, there will be no

     

    sureties and the court would find it very difficult to secure the

     

    presence of the accused at the stage of pronouncement of

     

    judgment where a sentence of imprisonment is to be imposed or

     

    later where a sentence of fine alone is imposed. At the initial

     

    stage of issue of process, if an accused does not appear in

     

    response to an ordinary summons now the courts do not appear

     

    to be powerless and even without a bond, their presence is being

     

    secured by courts by issue of processes at its command. I will

     

    not lightly assume that such processes will be unequal to the task

     

    of securing the presence of the accused later for pronouncement

     

    of judgment or after the judgment is pronounced. That worry

     

    does not also persuade me to hold that the presence of the

     

    accused throughout in a 138 prosecution cannot be dispensed

     

    with under Section 205 Cr.P.C.

     

          30. If the accused is not on bail, execution of the sentence

     

    cannot be suspended under Section 389(3) Cr.P.C to enable an

     

    accused to prefer an appeal.     The courts will be obliged to

     

    straight away execute the sentence. This may amount to denial

     

    of the right of an accused to get the sentence suspended to

     

    enable him to prefer an appeal, it is apprehended by some

     

    counsel. I find no merit in this apprehension. In a case where

     

    the accused is exempted under Section 205 Cr.P.C and the

     

    judgment of conviction is pronounced in his absence just,

     

    reasonable and orderly procedure mandates that the court must

     

    direct the accused to appear before court on a specified day for

     

    execution of sentence. Imbibing the mandate of Section 389(3)

     

    Cr.P.C, any reasonable Magistrate must post the case for

     

    appearance of the accused only on such a date, which will ensure

     

    that the accused gets reasonable time to prefer an appeal in the

     

    meantime. Further, I am unable to accept the contention that

     

    the language of Section 389(3) Cr.P.C would bar the suspension

     

    of sentence in a 138 prosecution, when the presence of the

     

    accused is exempted under Section 205 Cr.P.C. Under Section

     

    389(3) Cr.P.C when the accused is on bail, the sentence can be

     

    suspended. It will be succumbing to the tyranny of linguistic

     

    technicality to assume that when a court has chosen to exempt an

     

    accused from personal appearance and the obligation to seek bail, he

     

    will not be entitled to the benefit or advantage to which a person

     

    released on bail will be entitled to. The expressions "being on

     

    bail" and "is on bail" appearing in Section 389(3) (i) and (ii)

     

    Cr.P.C must be read and understood reasonably to include an

     

    accused from whom bail has not been demanded at all and who

     

    enjoys his freedom. A judicial functionary who is unable to find

     

    space to extend the benefit of Section 389(3) Cr.P.C to an

     

    accused who enjoys his freedom, who is not in custody, who has

     

    not been directed even to offer bail and who has been exempted

     

    from personal appearance under Section 205 Cr.P.C is definitely

     

    missing the woods for the trees. He lacks orientation in human

     

    rights jurisprudence and does lack the training to jump over

     

    insignificant fences. Sentence imposed on an exempted accused,

     

    in whose absence judgment is pronounced need not be executed

     

    till the next date of posting. On such next date he must be

     

    directed to appear in person or produce order of suspension if

     

    any from the appellate court. An exempted accused who has

     

    been directed only to appear to receive judgment must be held to

     

    be a person to whom the benefit of Section 389(3) Cr.P.C is

     

    available, he having been exempted already from the obligation

     

    to appear and offer bail. This apprehension is thus found to be

     

    without substance.

     

          31. Another anxiety is expressed - that if the Counsel do

     

    not appear before courts on behalf of the accused, whose

     

    presence is dispensed with, it would impede the proper progress

     

    of the case.      The learned Judges of the Supreme Court in

     

    M/s.Bhaskar Industries Ltd. v. M/s.Bhiwani Denim and

     

    Apparels Ltd. and Others [2001(3) KLT 307 SC] appear to

     

    have considered and answered this very question in the following

     

    words:

     

                "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 for 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."

     

          32. I will not lightly assume that in the competitive

     

    profession of law a counsel who initially offers to represent an

     

    accused will later not choose to appear for him and cause

     

    embarrassment to his client and the court to the detriment of

     

    orderly procedure. Any counsel who does it would do so only at

     

    his peril.    The organised professional disciplinary body will

     

    certainly take him to task if such irresponsibility were shown by

     

    him. I need not discuss the options in law which will be available

     

    for the client in the wake of such irresponsible behaviour on the

     

    part of the counsel. This aspect has been adverted to in detail by

     

    Hon'ble Justice Khalid in paragraph 19 of the decision in Helen

     

    Rubber Industries (Supra).

     

          33. I am afraid, the question is one basically of attitudes

     

    and mind sets. Traditional criminal courts would shudder at the

     

    thought of a criminal trial being held without the personal

     

    presence of the accused from the stage of cognizance to the

     

    stage of pronouncement of judgment. It is essential that courts

     

    have to be cognizant of the changing times and to the new

     

    breezes which which sweep through the system of administration

     

    of justice. The new generation court will not and should not

     

    cause any avoidable inconvenience to any party, litigant or

     

    witness. The system exists not for the lawyer or the judge but for

     

    the litigants - the seekers of justice.   Their interest shall be

     

    primary and uppermost in the mind of the courts and merely

     

    because it is more convenient for the Judge or the lawyer,

     

    undeserved trauma cannot be inflicted on the litigant.        The

     

    mandate of Article 21 of the Constitution of India that procedural

     

    law must also be fair, reasonable and just and should not be

     

    arbitrary, capricious or oppressive will have to be borne in mind

     

    while considering and contemplating procedures advantageous

     

    to the litigant.

     

          34. I find that practically there can be no doubt on the

     

    question whether an accused person can be exempted from

     

    appearance throughout the criminal trial and that aspect appears

     

    to have received the attention of the Judges of the Supreme

     

    Court in     M/s.Bhaskar Industries (Supra).     Their Lordships

     

    observed thus in paragraph 19 in the following words:

     

                "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 to him, and the comparative

          advantage would be less."

                                          (emphasis supplied)

     

          35. Of course, it has been stated that such discretion need

     

    be exercised only in rare instances. The learned counsel contend

     

    that the fact that the prosecution is one under Section 138 of the

     

    Negotiable Instruments Act, can itself be regarded as sufficient

     

    reason to invoke this discretion. The fact that it is a technical

     

    offence and the fact that it is an offence which involves no moral

     

    turpitude in the commonly accepted meaning of the term are

     

    sufficient to mandate that in a prosecution under Section 138 of

     

    the Negotiable Instruments Act the discretion under Section 205

     

    Cr.P.C must be conceded in favour of the accused.         I am in

     

    complete agreement with that submission of the counsel.         In

     

    paragraph 15 of the decision in         M/s.Bhaskar Industries

     

    (Supra), their Lordships have adverted to the tribulations and

     

    hardships faced by accused persons facing prosecutions under

     

    Section 138 of the Negotiable Instruments Act.

     

          36. There are more reasons that should persuade the

     

    courts to adopt such a course. The corridors of the criminal

     

    courts in the State are thronged unnecessarily by the litigants

     

    and not a day passes in this court in this jurisdiction under

     

    Section 482 Cr.P.C without accused persons coming to lament

    before this court that they could not wade their way through the

     

    crowd and reach the Magistrate in time when the case was

     

    called. By then, their absence is noted and warrants of arrest

     

    are issued against them.      Deplorable is the infrastructure

     

    available in the subordinate courts in the State and every effort

     

    must be taken by the system to liquidate and dissolve the

     

    unnecessary crowds that throng the corridors of the criminal

     

    courts. For orderly functioning and to maintain a business like

     

    work ambience in the courts, such active efforts to eliminate

     

    unnecessary thronging of courts is absolutely essential. After

     

    the introduction of Section 138 of the Negotiable Instruments

     

    Act, the major portion of the time of the criminal courts in the

     

    State is consumed by such cases. I am, in these circumstances,

     

    satisfied that the need of the hour is to freely invoke the

     

    discretion under Section 205 Cr.P.C - unless in the facts of a

     

    given case there is reason not to extend the benefit to the

     

    accused. I am satisfied, in these circumstances that directions

     

    for observance generally by subordinate courts deserve to be

     

    issued on this aspect.

     

          37. The following rules of guidance can and must

     

    certainly be followed by the court below in the instant case as

     

    also all criminal courts which are called upon to deal with trials

     

    under Section 138 of the Negotiable Instruments Act.             I

     

    enumerate them below:

     

                i)    Hereafter in all 138 prosecutions, the very

     

          fact that the prosecution is one under Section 138 of

     

          the Negotiable Instruments Act shall be reckoned as

     

          sufficient reason by all criminal courts to invoke the

     

          discretion under Section 205 Cr.P.C and only a

     

          summons under Section 205 Cr.P.C shall be issued by

     

          the criminal courts at the first instance.       In all

     

          pending 138 cases also applications under Section

     

          205 Cr.P.C shall be allowed and the accused shall be

     

          permitted to appear through their counsel.

     

                ii)   The plea whether of guilty or of innocence

     

          can be recorded through counsel duly appointed and

     

          for that purpose personal presence of the accused

     

          shall not be insisted.

     

                iii)  Evidence can be recorded in a trial under

     

          Section 138 of the Negotiable Instruments Act in the

     

          presence of the counsel as enabled by Section 273 Cr.P.C

     

          when the accused is exempted from personal appearance

     

          and for that purpose, the personal presence of the accused

     

          shall not be insisted.

     

                iv)   Examination under Section 313(b) Cr.P.C can

     

          be dispensed with under the proviso to Section 313(1) and

     

          if the accused files a statement explaining his stand, the

     

          same can be received by the court notwithstanding the

     

          absence of a provision similar to Section 233 and 243

     

          Cr.P.C in the procedure for trial in a summons case. The

     

          power and the obligation to question the accused to enable

     

          him to explain the circumstances appearing in evidence

     

          against him must oblige the court in such situation to

     

          accept and consider the written statement made by the

     

          accused.

     

                v)    To receive the judgment also, it is not

     

          necessary     or   essential to    insist on the personal

     

          presence of the accused if the sentence is one of fine or

     

          the   judgment     is one   of   acquittal.     After  the

     

          pronouncement of judgment, the case can be posted

     

          to a specific date with directions to the accused to

     

          appear in person to undergo the sentence. By that

     

          date, it shall, of course, be open to the accused to get

     

          the order of suspension of the superior court

     

          produced before court.

     

                vi)   Where warrants are to be issued in a 138

     

          prosecution, ordinarily a bailable warrant under

     

          Section 88 Cr.P.C must be issued at the first instance

     

          before a non-bailable warrant without any stipulations

     

          under Section 87 Cr.P.C is issued.

     

                vii) The     above   stipulations  can  only   be

     

          reckoned as applicable in the ordinary circumstances

     

          and are not intended to fetter the discretions of the

     

          court to follow any different procedure if there be

     

          compelling need. In such event, the orders/directions

     

          of the Magistrate shall clearly show the specific

     

          reasons as to why deviations are resorted to.

     

                viii)  Needless to say, any person having a

     

          grievance that the above procedure has not been

     

          followed unjustifiably shall always have the option of

     

          approaching this Court for directions under Section

     

          482 Cr.P.C.     The Sessions Judges and the Chief

     

          Judicial Magistrates must also ensure that these

     

          directions are followed in letter and spirit by the

     

          subordinate courts. Commitment to human rights and

     

          the yearning to ensure that courts are user friendly

     

          are assets to a modern judicial personality and

     

          assessment of judicial performance by the superiors

     

          must make note of such commitments of a judicial

     

          officer.

     

                ix)   Even though the above directions are

     

          issued with specific reference to prosecutions under

     

          Section 138 of the Negotiable Instruments Act, they

     

          must be followed in all other cases also where the

     

          offence alleged is technical and involves no moral

     

          turpitude.

     

          38. A very relevant question can be posed. If the system

     

    can be so understanding towards an indictee, should the

     

    complainant in a 138 prosecution be obliged to appear before

     

    court on all dates of posting.     It has time and again been

     

    repeated that the mere absence of a complainant does not entail

     

    the consequences under Section 256 Cr.P.C. and the presence of

     

    the complainant need also be insisted only if the progress of the

     

    case demands such appearance. On all other dates from the date

     

    of filing of complaint to the date of judgment he can also be

     

    permitted to be represented by his counsel.

     

          39. Should such general directions be issued by this Court

     

    in a specific case? Will it not be more proper and prudent to

     

    leave it to the legislature or rule making authority?       This

     

    question does worry me.      But I am satisfied that until such

     

    functionaries are moved into action there is urgent necessity to

     

    rationalise and simplify the procedure followed. The amount of

     

    trauma and tedium endured by the litigants and the amount of

     

    unnecessary litigation in this Bench in the High Court, as

     

    perceived by me in my long experience while dealing with the

     

    jurisdictions of bail and under Section 482 Cr.P.C persuade me

     

    to feel that it will be dereliction of duty if the subordinate

     

    judiciary is not guided and goaded to adopt user friendly

     

    procedure in criminal trial of offenders who have no moral

     

    turpitude and who are allegedly guilty of only technical offences.

     

          40. Coming to the specific facts of this case, I am satisfied

     

    that the petitioner/accused is entitled to the advantage of all the

     

    directions issued above.     The petitioner can appear through

     

    counsel before the court below and claim exemption under

     

    Section 205 Cr.P.C.       No further directions appear to be

     

    necessary.

     

          41. This Crl.M.C. is accordingly allowed.

     

          42. I place on record my appreciation for the good work

     

    done by the learned counsel for the petitioner Sri.Priyadarshan

     

    Thampi and Adv.Sri.S.Rajeev who rendered assistance to the

     

    court as Amicus curiae.

     

          43. Communicate copy of this order to all criminal courts

     

    in the State for guidance and compliance.

     

    ..............................................................................

     

     

     

                                             



     
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