2021 (6) TMI 1127 - HC - Indian Laws

Grant of permission to an accused to go abroad for employment - offence punishable under Sections 498A and 506(i) of the Indian Penal Code - HELD THAT - The normal rule is that evidence in a case shall be taken in the presence of the accused. However, even in the absence of the accused, evidence can be taken but then his counsel must be present in the court, provided the accused has been granted exemption from attending the court. If the progress of the trial can be achieved even in the absence of the accused, the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court. 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. In the instant case, the offences alleged against the petitioner are punishable under Sections 498A and 506(i) of the Indian Penal Code. There will not be any need for the prosecution witnesses to identify him in the court as the offender. If the petitioner undertakes that he would appear before the trial court on all hearing dates as may be specifically directed by that court, he can be exempted from personal appearance before the court and he can be allowed to be represented through counsel and permission can be granted to him to leave the country for employment. The petitioner is granted permission to go abroad for employment purposes on the condition that he shall file an undertaking in the form of affidavit in the Magistrate's Court concerned that he would appear before that court as and when required by that court - Petition allowed.

Summary

Issues:
Granting permission to accused to go abroad for employment involving conflicting interests.

Analysis:
The judgment deals with the issue of granting permission to the accused, who is the first accused in a case registered under Sections 498A and 506(i) of the Indian Penal Code, to go abroad for employment. The court acknowledges the conflicting interests involved in such a decision, balancing the need for the legal process to proceed without impediment and the accused's right to continue their occupation or profession. The accused had been granted anticipatory bail by the Court of Session, and the police had filed a final report against him, which was returned defective. The accused, employed as a General Electrical Engineer in the UAE, sought permission to return to his job there as his visa was expiring soon.

The court examined the provisions of Section 317(1) of the Code of Criminal Procedure, 1973, which allows the Judge or Magistrate to dispense with the personal attendance of the accused if it is not necessary in the interests of justice. The court highlighted that evidence in a case is normally taken in the presence of the accused, but exceptions can be made if the accused gives an undertaking regarding their identity, presence of counsel, and willingness to proceed with the trial in their absence. The court referred to previous judgments to support the granting of exemptions under certain conditions to protect the interest of justice.

The judgment also cited previous cases where courts had discretionary power to exempt the personal appearance of the accused in warrant cases and record their plea through authorized counsel. In this specific case, the court found that since the prosecution witnesses did not need to identify the accused in court, and the accused undertook to appear before the trial court as directed, he could be exempted from personal appearance and allowed to leave the country for employment. The court exercised its power under Section 482 of the Code to grant appropriate relief to the accused due to the practical paralysis of lower courts' functioning during the COVID-19 pandemic, ensuring access to justice and securing the ends of justice.

In conclusion, the court allowed the petition and granted permission to the accused to go abroad for employment on the condition that he files an undertaking in the Magistrate's Court, engages counsel for all hearing dates, does not object to the recording of evidence in his absence, and does not seek adjournments on his behalf. This comprehensive analysis showcases how the court balanced the interests of justice and the accused's right to work abroad, ensuring a fair resolution to the conflicting issues involved.