2004 (9) TMI 700 - HC - Indian Laws

Summary

Issues Involved:
1. Quashing of non-bailable warrants (NBW).
2. Quashing of an order under Section 82 of the Criminal Procedure Code, 1973.
3. Necessity of an accused's presence in court for summons cases under Section 138 of the Negotiable Instruments Act.
4. Exercise of discretionary powers under Sections 205 and 317 of the Criminal Procedure Code to grant personal exemption to the accused.

Detailed Analysis:

1. Quashing of Non-Bailable Warrants (NBW):
The petitions primarily sought to quash non-bailable warrants issued against the accused. In the first four petitions, the NBWs were issued due to the accused's non-appearance in court. The court examined whether the issuance of NBWs was justified, considering the accused had either appeared through counsel or had valid reasons for absence. The court highlighted that NBWs should be issued only as a last resort and not as a routine measure.

2. Quashing of an Order under Section 82 of the Criminal Procedure Code, 1973:
One petition challenged the order under Section 82 of the CrPC, which involved the issuance of a proclamation requiring the accused to appear before the magistrate. The court emphasized that such orders should be issued only when there is a clear indication that the accused has absconded or is intentionally avoiding court summons.

3. Necessity of an Accused's Presence in Court for Summons Cases under Section 138 of the Negotiable Instruments Act:
The court addressed whether it is imperative for an accused to appear in court on every hearing date in summons cases under Section 138 of the Negotiable Instruments Act. The court noted the heavy backlog of cases and the practical difficulties faced by accused persons, especially those residing far from the court. It was observed that courts should be generous in exercising their powers to grant exemptions from personal appearance unless the accused's presence is indispensably needed.

4. Exercise of Discretionary Powers under Sections 205 and 317 of the Criminal Procedure Code:
The court extensively discussed the discretionary powers under Sections 205 and 317 of the CrPC. Section 205 allows the magistrate to dispense with the personal attendance of the accused and permit appearance through counsel. Section 317 permits the court to dispense with the accused's attendance at any stage of the inquiry or trial if it is not necessary in the interest of justice. The court emphasized that these powers should be exercised liberally to avoid undue hardship to the accused and to ensure the smooth progress of the trial.

Key Observations and Directions:
- The court should be liberal in granting exemptions from personal appearance to the accused, especially in cases under Section 138 of the Negotiable Instruments Act.
- NBWs should be issued only as a last resort and not routinely.
- The presence of the accused can be dispensed with if represented by counsel, provided there is no prejudice to the prosecution.
- The court should record reasons for refusing exemptions and should not insist on the accused's presence unless necessary.
- The court should avoid requiring repeated applications for exemption on every hearing date.
- Similar considerations should apply to granting exemptions to complainants if their absence does not hinder the case's progress.

Conclusion:
The court directed that the impugned orders in the petitions be stayed until the concerned magistrates pass appropriate orders in line with the observations made in the judgment. The magistrates were instructed to pass these orders within two weeks of receiving the judgment, and the petitioners were directed to produce a copy of the judgment before the concerned magistrate within four weeks. The petitions were disposed of accordingly.