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2011 (1) TMI 1488 - SC - Indian LawsRules of guidance for Offence u/s 138 of the Negotiable Instruments Act - General directions have been issued to all the criminal courts, which are called upon to hold trials, particularly in cases involving an offence under Section 138 of the Negotiable Instruments Act, 1881 - discretion on the court to exempt an accused from personal appearance before the Magistrate/ the Trial Court, - complaint filed under Section 138 of the N.I. Act HELD THAT - Section 205 of Code of Criminal Procedure confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence - Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else. Order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial. In Manoj Narain Agrawal Vs. Shashi Agrawal Ors. 2009 (4) TMI 1056 - SUPREME COURT , this Court, while observing that the High Court cannot lay down directions for the exercise of discretion by the Magistrate under Section 205 of the Code, had held that similarly, the High Court should not have, for all intent and purport, issued the direction for grant of exemption from personal appearance. Such a matter undoubtedly shall be left for the consideration before the learned Magistrate. We are sure that the Magistrate would exercise his jurisdiction in a fair and judicious manner. It is equally trite that the inherent powers of the High Court under Section 482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice - Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. Thus, in the instant case, there are no hesitation in holding that the High Court exceeded its jurisdiction under Section 482 of the Code and/or Article 227 of the Constitution by laying down the afore-extracted general directions, which are inconsistent with the clear language of Sections 205 and 313 of the Code. In light of the afore-noted guidelines laid down by this Court, further directions on the same issue by the High Court were wholly uncalled for. The impugned order containing general directions to the lower courts is set aside - Appeal allowed.
Issues Involved:
1. Jurisdiction of the High Court under Sections 482 and 483 of the Criminal Procedure Code (Cr.P.C.) and Article 227 of the Constitution of India. 2. Discretion of the Magistrate under Section 205 of the Cr.P.C. to dispense with the personal appearance of the accused. 3. Guidelines for the exercise of discretion by the Magistrate in cases under Section 138 of the Negotiable Instruments Act (N.I. Act). 4. Examination of the accused under Section 313 of the Cr.P.C. 5. Inherent powers of the High Court under Section 482 of the Cr.P.C. 6. Superintendence powers of the High Court under Article 227 of the Constitution of India. Detailed Analysis: 1. Jurisdiction of the High Court under Sections 482 and 483 of the Cr.P.C. and Article 227 of the Constitution of India: The High Court, in its order dated 4th September 2008, issued general directions to criminal courts regarding trials under Section 138 of the N.I. Act. The Supreme Court examined whether the High Court could issue such guidelines under its jurisdiction. The Court concluded that the High Court exceeded its jurisdiction under Section 482 of the Cr.P.C. and Article 227 of the Constitution by laying down general directions inconsistent with the clear language of Sections 205 and 313 of the Cr.P.C. 2. Discretion of the Magistrate under Section 205 of the Cr.P.C.: Section 205 of the Cr.P.C. allows the Magistrate to dispense with the personal appearance of the accused. The Supreme Court emphasized that the discretion to exempt an accused from personal appearance lies solely with the Magistrate, who must consider the nature of the case and the conduct of the accused. The High Court's general directions were found to improperly circumscribe this discretion. 3. Guidelines for the exercise of discretion by the Magistrate in cases under Section 138 of the N.I. Act: The Supreme Court referred to the guidelines laid down in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. & Ors., which allow the Magistrate to dispense with the personal appearance of the accused in rare instances where it serves the interests of justice. The Court reaffirmed these guidelines, emphasizing that any order by the Magistrate should avoid unnecessary harassment to the accused while ensuring no prejudice to the complainant. 4. Examination of the accused under Section 313 of the Cr.P.C.: Section 313 of the Cr.P.C. deals with the personal examination of the accused. The Supreme Court noted that in a summons case, where personal appearance has been dispensed with, the Magistrate has the discretion to dispense with the personal examination of the accused. The Court referred to Basavaraj R. Patil & Ors. v. State of Karnataka & Ors., which allows the Magistrate to relieve the accused from personal examination under certain conditions. The High Court's direction to accept written statements from the accused was found to be inconsistent with the statutory provisions. 5. Inherent powers of the High Court under Section 482 of the Cr.P.C.: The Supreme Court reiterated that the inherent powers of the High Court under Section 482 of the Cr.P.C. should be exercised sparingly and only in rare cases to correct patent illegalities or prevent miscarriage of justice. The High Court's general directions were found to be an overreach of its inherent powers. 6. Superintendence powers of the High Court under Article 227 of the Constitution of India: The power of superintendence under Article 227 is both administrative and judicial, to be exercised sparingly to keep subordinate courts within their authority. The Supreme Court stressed that this power should not influence the subordinate judiciary to pass orders in a particular manner, preserving their independence in judicial functions. Conclusion: The Supreme Court allowed the appeal, setting aside the High Court's general directions. It directed that if the accused applies for exemption from personal attendance under Section 205 of the Cr.P.C. within four weeks, the exemption granted by the High Court shall continue until the trial court disposes of the application.
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