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TMI Blog2011 (1) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r short the Code ), inter alia, praying for dispensing with her personal appearance before the Magistrate. As afore-stated, the High Court, while allowing the said application, and permitting the accused to appear before the Trial Court through her counsel, felt that there was 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 of only a technical offence, including an offence under Section 138 of the N.I. Act. Relying on the decision of this Court in Bhaskar Industries Ltd. Vs. Bhiwani Denim Apparels Ltd. Ors. (2001) 7 SCC 401 1 and of the Kerala High Court in Saseendran Nair Vs. General Manager 1996 (2) KLT 482 ; K.S.R.T.C. Vs. Abdul Latheef 2005 (3) KLT 955 ; Raman Nair Vs. State of Kerala 1999 (3) KLT 714 ; Noorjahan Vs. Moideen2000 (2) KLT 756 and Helen Rubber Industries Ors. Vs. State of Kerala Ors. 1972 K.L.T. 794 , the learned Judge has issued the following `rules of guidance', with a direction that these can and must certainly be followed by the court below in the instant case as also by all criminal court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable 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. 3. Being aggrieved with the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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. (See: S.V. Muzumdar Ors. Vs. Gujarat State Fertilizer Co. Ltd. Anr. (2005) 4 SCC 173) . 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. 8. In Bhaskar Industries Ltd. (supra), this Court had laid down the following guidelines, which are to be borne in mind while dealing with an application seeking dispensation with the personal appearance of an accused in a case under Section 138 of the N.I. Act: 19. ...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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 11. 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. In Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, this Court observed that: So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges, explained the scope of clause (b) to Section 313(1) of the Code as follows : The word shall in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved? If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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