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TMI Blog2004 (9) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... her in summons case it is imperative for an accused to appear in the trial Court on each and every date of hearing and/or whether the Courts should be generous and liberal in exercising the powers conferred under Sections 205 and 317 of the Code and dispensing with a physical presence of an accused unless his presence is imperatively needed. For appreciating the submissions of the learned counsel for the parties better and for deciding the said question, the factual matrix in all the petitions, that would be relevant and material, in brief, is as under. (a) In Criminal Writ Petition No. 1424 of 2003, the complaint under Section 138 read with Section 141 of the Act came to be filed on 22-8-2002. The summons were issued on 28-3-2003 calling upon the petitioner-accused to appear on 19-4-2003. In due compliance of the summons, the Advocate filed an appearance on behalf of the petitioner on 19-4-2003. On the very same day, a warrant was issued to secure presence of the petitioner. On 12-9-2003, the revision application was filed in the Sessions Court, Thane, against the order of issuance of the warrant. The revision was dismissed on 12-9-2003. Hence, this petition was filed on 23-9-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant who refused to accept on the ground that the complainant had already left the Court. The learned Magistrate did not take the application on record and in this backdrop the petitioners have approached this Court by way of the instant application. (d) In Criminal Application No. 2129 of 2004, the complaint was filed in August, 1998. The petitioner claims that he appeared almost on all dates either personally or through his Advocate. Initially, a bailable and thereafter non bailable warrant was issued to secure his presence though his Advocate used to attend every date of hearing before the learned Magistrate. Since the petitioner, who is from Mumbai, could not appear before the learned Magistrate, the order under Section 82 of the Code came to be passed on 19-7-2004. Hence, this application. 3. It is against a backdrop of these facts, I would like to consider the question of law raised by the learned Advocates appearing for the parties. I heard all the learned counsel appearing in these matters for quite some time. The leading arguments were advanced by Mr. Jha and Mr. Siddiqui, learned counsel appearing for the petitioners. The submissions of the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not dispute his identity as the particular accused in the case and that he would be present in the Court when his presence is imperatively needed. 4. Keeping in view the importance of the issue involved in these petitions, I called for some information from the registry, which would be relevant and material to address the question raised in these petitions and appreciate the submissions of the learned counsel for the parties better. Let me quote the facts and figures furnished by the registry about pendency of the proceedings under Section 138 of the Act. In the Metropolitan City of Mumbai, apart from other summons cases, pendency of complaints filed under Section 138 of the Act is 93,631 and in rest of the State of Maharashtra 2,28,249 cases. For dealing with these cases in Mumbai, we have 41 judicial officers and outside Mumbai 492. Their average disposal per month in Mumbai is 57.24 percent and in the Courts outside Mumbai it is hardly 9.24 percent. These figures would show the alarming situation of the huge pendency of the cases under Section 138 of the Act in the State of Maharashtra. (a) It is useful to note the observations of the Apex Court made while dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttend the Court on the given date, the Court issues bailable or non-bailable warrant even if the advocate appears and applies for exemption. (a) It is also a general experience that a complainant and his advocate, instead of proceeding with the case, pray for issuance of NBW against the accused if he does not appear. Resultantly, the Court, even if is in a position to proceed with the matter, instead of doing so issues bailable or NBW against the accused which unnecessarily causes further delay in disposal of the case. In this backdrop it has become imperative to consider as to whether the Court should be generous and liberal in exercising the powers conferred under Sections 205 and 317 of the Code granting exemption to the accused from personal appearance without causing prejudice to the prosecution proceedings. 6. Sections 205 and 317 of the Code give wide powers to the Courts for dispensing with the personal attendance of the accused at every stage of the case. The Apex Court in Bhaskar Industries Ltd (supra) while dealing with Section 205, has observed that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense with the personal attendance of an accused at any stage of the enquiry provided he is represented by a counsel and while so doing may direct the personal attendance of such accused at any subsequent stage of the proceedings. Sub-section (2) of Section 317 provides that if the accused is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial or order that the case of such accused be taken up or tried separately. (b) It is thus clear, that the powers under Section 317 could be and should be exercised only if a Court is satisfied that in the interest of justice the personal attendance of an accused need not be insisted and that the Court has the power to dispense with the attendance of that accused. 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 a particular accused in the case, and that a counsel on his behalf would be present in the Court and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. 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. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 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 of 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 discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions in the Code. The Second Schedule of the Code provides Form No. 1, i.e. Form of Summons to an accused person, as contemplated under Section 61 of the Code. Form No. 1 reads thus: Summons to an accused person To, (name of accused) of (address) WHEREAS your attendance is necessary to answer to a charge of (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of........on the......day of......Herein fail not. Dated, this - day of------, 19 (seal of the Court) (Signature) It clearly requires an accused to appear in person or by a pleader. It does not insist that the accused should appear in person on receipt of summons in the case. (a) Section 273 of the Code is also useful. It says that 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. Section 273 requires that the evidence be taken in the course of trial in the presence of the accused and that is why physical presence of an accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons? or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. Thus, the power conferred under this provision is sufficient enough to secure presence of an accused when his presence is imperatively needed or becomes indispensable for the progress of the case. Under this provisions, it is necessary that warrant of arrest for securing presence of the accused be issued only in the following eventualities and, that to, by recording its reasons in writing. Firstly, if Court sees reason to believe that he has absconded or will not obey the summons and, secondly, if without reasonable excuse, he fails to appear in spite of service of summons. His appearance through a counsel on receipt of the summons would, however, be sufficient compliance of the summons or that could be treated as abeyance of the summons. In other words, on receipt of summons, the accused need not personally appear before the Court unless so specifically directed by the Court for the reasons recorded to that effect by the Court. Even the invocation of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing. The idea is to see that the progress of the case is not hindered for want of presence of the accused or even the complainant for that matter. Keeping this in view and against a backdrop of the observations made in the foregoing paragraphs, I deem it appropriate to issue the following directions to the Courts trying summons cases and in particular, cases under Section 138 of the Act. (i) Ordinarily, the Court should be generous and liberal in exercising powers under Sections 205 and 317 of the Code and grant exemption to the accused from personal appearance unless presence is imperatively needed or becomes indispensable. While considering the application for exemption, the Court should also bear in mind the nature of accusations and prejudice, if any, likely to be caused to the prosecution or the complainant, if personal attendance of the accused is dispensed with or to the accused if personal attendance is insisted upon, as case may be. (ii) If an accused makes even the first appearance through a counsel, he may be allowed to do so. (iii) If an accused is seeking permanent exemption in a case, the Court, while dealing with such application, should take precautions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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