Gujarat High Court
Ishwarbhai Hirabhai Chunara & vs State Of Gujarat & on 27 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9113/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9113 of 2016
[On note for speaking to minutes of order dated 22/02/2017 in
R/SCR.A/9113/2016 ]
==========================================================
ISHWARBHAI HIRABHAI CHUNARA & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/02/2017
ORAL ORDER
This Court, vide order dated 22nd February 2017, disposed of the main matter issuing certain directions. In para - 5 of the order, it has been observed that the applicants original accused preferred a criminal appeal before the Sessions Court, which is yet to be registered. It is pointed out that in fact, the criminal appeal has been registered and numbered.
With the above clarification, the Note is disposed of.
(J.B.PARDIWALA, J.)
chandresh
Page 1 of 1
HC-NIC Page 1 of 20 Created On Tue Feb 28 00:48:40 IST 2017
1 of 20
R/SCR.A/9113/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9113 of 2016 ========================================================== ISHWARBHAI HIRABHAI CHUNARA & 1....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 2 NOTICE SERVED BY DS for the Respondent(s) No. 2 MS NISHA THAKORE, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 22/02/2017 ORAL ORDER 1 The respondent No.2 - original first informant, although served with the notice issued by this Court, has chosen not to remain present before this Court either in person or through an advocate and oppose this application.
2 Rule returnable forthwith. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No.1 - State of Gujarat.
3 By this application Article 227 of the Constitution of India, the applicants - original accused persons have prayed for the following reliefs:
"(17)(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or Page 1 of 19 HC-NIC Page 2 of 20 Created On Tue Feb 28 00:48:40 IST 2017
2 of 20 R/SCR.A/9113/2016 ORDER directions quashing and setting aside the impugned order dated 07.10.2016 passed by the 4th Additional Chief Judicial Magistrate, Vadodara, passed below Exh. 68 (at AnnexureA hereto) and further be pleased permit the petitioners to suspend the sentence imposed upon the petitioners judgment and order dated 07.03.2015 passed by learned 10th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.2999/2003 (new No.40529/2003) (at AnnexureA hereto) so that they can prefer appeal before the learned appellate Court in the interest of substantial justice;
(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of the impugned order dated 07.10.2016 passed by learned 4th Additional Chief Judicial Magistrate, Vadodara, passed below Exh. 68 (at AnnexureA hereto);
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
4 It appears from the materials on record that the applicants herein has been convicted by the learned 4th Additional Chief Judicial Magistrate, Vadodara for the offence punishable under Section 138 of the Negotiable Instruments Act in the Criminal Case No.2999 of 2003. On the date of the pronouncement of the judgment and order of conviction, the applicants being the accused persons were not present. Since the applicant sdid not remain present before the Court on the date of the pronouncement of the judgment and no application was filed for suspension of substantive order of sentence under Section 389 of the Code of Criminal Procedure, 1973, the complainant preferred an application praying for issue of a nonbailable warrant. The Court concerned, acting on such an application filed by the complainant, issued a nonbailable warrant, which is made a subjectmatter of challenge before this Court in this application.
5 I am told that later on, the accused persons i.e. the applicants herein preferred a criminal appeal before the Sessions Court, which is Page 2 of 19 HC-NIC Page 3 of 20 Created On Tue Feb 28 00:48:40 IST 2017 3 of 20 R/SCR.A/9113/2016 ORDER yet to be registered.
6 The issue raised in this application is squarely covered by a Division Bench decision in the case of Sharad Jethalal Savla vs. State of Gujarat and others [Criminal Miscellaneous Application No.19862 of 2015 decided on 14th November 2016]. I may quote the relevant observations made in the said judgment:
"15 Having heard the learned counsel appearing for the parties and having considered the materials on record, the following questions fall for my consideration:
I. Whether on account of the absence of the applicant accused herein on the date of the pronouncement of the judgment, the judgment would become invalid in view of the provisions of Section 353 of the Code of Criminal Procedure, 1973?
II. Whether the trial Court was justified in issuing a nonbailable warrant of arrest of the applicant accused herein having noticed that the accused was not present at the time of the pronouncement of the judgment and order of conviction and sentence?
III.Whether the nonbailable warrant issued by the trial Court for the arrest of the applicant accused herein could be said to be for the purpose of execution of the sentence of imprisonment, as provided under Section 418 of the Cr.P.C.?
IV.Whether the trial Court was justified in rejecting the application filed under Section 389(3) of the Code or declining to pass an appropriate order on such application for the purpose of suspension of the substantive order of sentence to enable the applicant accused herein to file an appeal before the Sessions Court on the ground of his absence before the Court? To put it in other words, whether the insistence on the part of the trial Court for the personal presence of the accused for the purpose of passing appropriate order on the application filed under Section 389(3) of the Cr.P.C. by the advocate could be said to be justified in law?
V. Whether the Sessions Court was justified in refusing to register the appeal filed by the applicant accused herein through his advocate challenging the judgment and order of conviction and sentence on the ground that the accused had not surrendered before the trial Court and the trial Court had not passed any order under Section Page 3 of 19 HC-NIC Page 4 of 20 Created On Tue Feb 28 00:48:40 IST 2017 4 of 20 R/SCR.A/9113/2016 ORDER 389(3) of the Code suspending the substantive order of sentence passed by the trial Court to enable the accused to prefer an appeal before the appellate Court?
VI.Whether the Sessions Court was justified in insisting for the personal presence of the applicant accused herein for the purpose of the registration of the appeal?
16 This case raises an important aspect of law as to the efficacy of the criminal law if a person accused of an offence and convicted as such avoids arrest and avoids imprisonment as sentenced by the criminal court. Such an incident only makes the justice delivery system insignificant and renders justice ineffective. Legal justice requires that an offender convicted of a crime must suffer the imprisonment as otherwise there would be social anarchy. People would contravene the law with impunity without any attending punishment for violating the law. The very foundations of democracy and rule of law would be shaken and that is the reason why the Courts strive to treat all persons before the criminal law as equal. Whether one is rich or poor, whether one is in powerful or powerless, the criminal law is equally applied to all equally.
17 'Be you ever so high, but the law is above you', is the signature theme of rule of law that loudly and silently (as well) echoes in the Indian Constitutional context. The purpose of the Constitution itself is to equalize the men (and women) before the law. Equal protection of laws and equality before the law does not make any distinction between the Ruler and the ruled when it comes to enforcing the criminal sanctions. If a convict with money power as well as political power can avoid the punishment imposed by the highest Court of the State, the Court which imposed such punishment cannot be a mute spectator or dumb listener to be soothed by high caliber forensic oratory of the counsel at the altar of justice. The Court must and ought to take a serious view of such bizarre incidence: be it one in million. Of course, the law makers and law enforcers must willingly assist the Court in angling the convict avoiding and dodging the law makers, the law enforcers and the law interpreters (Judges and Courts).
18 In the aforesaid context, a reference may be made to a judgment of the Constitution Bench of the Supreme Court of India in K. Veeraswami v. Union of India, (1991) 3 SCC 655 a case in which no other than a person appointed under the Presidential constitutional warrant as Judge as well as the Chief Justice to the highest Court of State of Tamil Nadu was accused of an offence under the Prevention of Corruption Act, 1947. In concurring opinion, L.M. Sharma, J. (as his Lordship then was) in paragraph 86 (of SCC) made the following observations.
.......It is, therefore, not safe to assume that the Act intended to Page 4 of 19 HC-NIC Page 5 of 20 Created On Tue Feb 28 00:48:40 IST 2017 5 of 20 R/SCR.A/9113/2016 ORDER make in its application any discrimination between the lower and the higher judiciary. Protection to the public servant in general is provided under Article 311 and the interest of the subordinate judiciary is further taken care of by the High Court, and this along with the provisions regarding previous sanction shields them from unjustified prosecution. Similarly protection is available to the High Court and Supreme Court Judges through the provisions of Article 124 (4) and (5) of the Constitution. So far as this aspect is concerned, the two categories of Judges High Court and Supreme Court Judges on the one hand and the rest on the other have not been treated by the law differently. There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prosecution while in identical circumstances a member of the subordinate judiciary is tried and convicted. Such an interpretation of the Act will militate against its constitutional validity and should not, therefore, be preferred.
19 In Vineet Narain v. Union of India, (1996) 2 SCC 199 : (AIR 1996 SC 3386), the following observations, which are apt, were made by the Supreme Court (para 3 of AIR):
The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law : "Be you ever so high, the law is above you." Investigation into every accusation made against each and every person on a reasonable basis irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.
20 In Vineet Narain v. Union of India, AIR 1998 SC 889 : (1998 Cri LJ 1208), the Supreme Court observed as under (paras 46 and 47).
The law does not classify offenders differently for treatment thereunder, including investigation of offences and prosecution for offences, according to their status in life. Every person accused of committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The Single Directive is applicable only to certain persons above the specified level who are described as "decision making officers". The question is whether any distinction can be made for Page 5 of 19 HC-NIC Page 6 of 20 Created On Tue Feb 28 00:48:40 IST 2017
6 of 20 R/SCR.A/9113/2016 ORDER them for the purpose of investigation of an offence of which they are accused.
21 Before adverting to the rival submissions canvassed on either sides, the following provisions of the Cr.P.C. should be looked into:
Section 353. Judgment (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.
(2) Where the judgment is delivered under clause (a) of subsection (1), the presiding officer shall cause it to be taken down in short hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of subsection (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner specified in clause (c) of subsection (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted :
Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the Page 6 of 19 HC-NIC Page 7 of 20 Created On Tue Feb 28 00:48:40 IST 2017
7 of 20 R/SCR.A/9113/2016 ORDER judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.
(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465.
Section 382. Petition of appeal Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.
Section 389. Suspension of sentence pending the appeal; release of appellant on bail (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
a [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release :
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.Page 7 of 19
HC-NIC Page 8 of 20 Created On Tue Feb 28 00:48:40 IST 2017 8 of 20 R/SCR.A/9113/2016 ORDER (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
Section 418. Execution of sentence of imprisonment (1) Where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant :
Provided that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct.
(2) Where the accused is not present in Court when he is sentenced to such imprisonment as is mentioned in subsection (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest.
• ANALYSIS:
22 So far as the first question is concerned as regards the pronouncement of the judgment and order of conviction and sentence in the absence of the applicant accused, I am of the view that no illegality could be said to have been committed by the trial Court.Page 8 of 19
HC-NIC Page 9 of 20 Created On Tue Feb 28 00:48:40 IST 2017
9 of 20 R/SCR.A/9113/2016 ORDER 23 Chapter XVI of the Cr.P.C. deals with the commencement of the proceedings before the Magistrate. Under Section 204, Cr.P.C. the Magistrate after taking cognizance of the offence issues summons or warrants, depending upon the case, i.e., either a summons case or a warrant case. Under Section 205 (1), Cr.P.C., the Magistrate having issued the summons for the personal attendance of the accused is empowered to dispense with the personal attendance of the accused and permit him to appear by his pleader/advocate. Under subsection (2) even if the Magistrate dispenses with the personal attendance of the accused in his discretion at any stage of the proceedings, he is empowered to direct the personal attendance of the accused in the manner provided in the Section. Chapter XXIV, Cr.P.C. deals with the general provisions as to enquiries and trials. Under Section 317, at any stage of the enquiry or trial, the concerned Judge or Magistrate trying the case is empowered to dispense with the personal attendance of the accused before the Court in the interest of Justice or in the event the accused is found persistently disturbing the proceedings of the Court. At the same time at any stage of the proceedings he could direct the personal attendance of the accused. Under subsection (2), even if the accused is not represented by an advocate, if the presiding officer feels that the personal attendance of the accused is necessary, he may adjourn the enquiry or trial. Chapter XXVII deals with the pronouncement of the judgment. After laying down the procedure about the pronouncement of the judgment, subsection (5) of Section 353 states that if the accused is in the custody, he shall be brought to the Court to hear the judgment pronounced. Under subsection (6), if the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted.
24 From the above provisions it can be safely presumed that the presence of the accused is insisted during the trial for more than one reason though the provisions are made for dispensing with their personal attendance for the reasons enumerated under Section 205 or 317, Cr.P.C. The reasons for insisting for their personal attendance are that during the trial, the presiding officer is expected to record the evidence in the presence of the accused in the language known to him and the accused has to follow the evidence that is being let in by the prosecution against his interests and give suitable instructions to his counsel to disprove the case of the prosecution as he will be the appropriate person who knows the truth or otherwise of the allegations made against him. Likewise the presence of the accused is insisted at the time of pronouncement of the judgment and in the event of his being convicted he has to be heard on the sentence to be imposed. Hence, there is every justification in insisting for the appearance of the accused during the trial.
Page 9 of 19
HC-NIC Page 10 of 20 Created On Tue Feb 28 00:48:40 IST 2017
10 of 20
R/SCR.A/9113/2016 ORDER
25 However, the judgment that the learned Magistrate may pronounce in the absence of the accused by itself will not vitiate the judgment. Sub section (7) of Section 353 of the Cr.P.C. clearly lays down that no judgment delivered by any criminal court shall be deemed to be invalid by reason only of the absence of any party.
26 The First question is answered accordingly.
27 So far as the second question is concerned, I am of the view that the trial Court committed no error in issuing a nonbailable warrant of arrest having noticed that the the accused was not present at the time of pronouncement of the judgment and order of conviction and sentence in view of the provisions of Section 418 (2) of the Cr.P.C. Under Subsection (2) of Section 418 of the Cr.P.C., when the accused sentenced to imprisonment is not present in the Court, the Court has to issue a warrant of his arrest and the sentence shall commence on the date of his arrest. I am of the view that the Magistrate had two options. He could have, before pronouncement of the judgment and order of conviction and sentence, enforced the attendance of the applicant accused in the Court or pronounce the judgment in the absence of the accused and issue warrant of arrest. The learned Magistrate thought fit to adopt the latter part of the procedure i.e. pronounced the judgment, and thereafter, proceeded to issue a warrant under Section 418(2) of the Cr.P.C.
28 I may refer to and rely upon a decision of the Supreme Court in the case of Lallan Singh and others vs. State of Uttar Pradesh [(2015) 3 SCC 362]. I may quote the observations made by the Supreme Court in paras 10, 10.1, 10.2 and 10.3. The same are elicited as under:
10 The legal position as to the process that should follow an order or conviction is much too clear to require any special emphasis. We say so because Chapter XXXII of the Code of Criminal Procedure, 1973, prescribes the process and the procedure to be followed for execution of sentence of death and/or other sentences awarded to convicts. We may in particular refer to Sections 417, 418, 472 and 420 CrPC which deal with the power to appoint place of imprisonment of the convict, the execution of sentence of imprisonment and the direction of warrant for execution as also the persons with whom the same has to be lodged:
10.1 Section 418 of the Code in particular deals with execution of sentence imprisonment and inter alia empowers and obliges the court passing the sentence to forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and, unless the accused is otherwise confined in such jail or other place to forward him to such jail or other place with a warrant. In terms of subsection (2) of Section 418, where the accused is not present in Page 10 of 19 HC-NIC Page 11 of 20 Created On Tue Feb 28 00:48:40 IST 2017 11 of 20 R/SCR.A/9113/2016 ORDER the court when sentence of imprisonment as is mentioned in sub section (1) is pronounced, the court is required to issue a warrant for his arrest for the purpose of forwarding him to jail or other place in which he is to be confined and in such cases the sentence shall commence on the date of his arrest. There is thus no gainsaying that upon conviction of an accused and sentence of imprisonment awarded to him, the court concerned is expected to commit him to jail in terms of a warrant that would authorities him confinement for the period he is to undergo such imprisonment. We have no reason to believe that this procedure is not followed invariably in all such cases where the convict is not present before the court concerned and is required to be committed to imprisonment for undergoing the sentence.
10.2 We also believe that the process of issuing warrant to apprehend the convict is followed diligently in keeping with the spirit underlying Section 418 CrPC.
10.3 The difficulty, in our opinion, arises when the warrants so issued by the court concerned remain unexecuted. This happens not only in cases where the accused has been convicted and sentenced by the trial court but also where an appeal or revision preferred against the conviction is eventually dismissed by the High Court.
There is no manner of doubt that even in such cases the court is under an obligation after receipt of an intimation about the dismissal of the appeal or revision preferred by the convicts, to follow the procedure under Section 418 CrPC for apprehension of the accused, in case he has not surrendered voluntarily, and to commit him to jail to undergo the sentence awarded to him. Experience, however, shows that when warrants are forwarded to the police for execution the same remain unexecuted for years as noticed by us in the case at hand where despite the dismissal of the appeal filed by two of the life convicts, held guilty of a double murder, had remained at large for considerably long period.
29 In the aforesaid context, I may also refer to and rely upon a Full Bench decision of this Court in the case of Dipakkumar Bhanuprasad Upadhyay vs. State of Gujarat [1998 Cr.L.J. 1933]. I may quote the observations made by the Full Bench as contained in para 6. The same are elicited as under:
6. The concept of imprisonment is not a fluid concept and it gets its colour and meaning from the provisions contained in the Code of Criminal Procedure. Chapter XXXII of the Code of Criminal procedure, 1973 provides for execution, suspension, remission and commutation of sentences. Provisions of Sections 417 to 424 have a Page 11 of 19 HC-NIC Page 12 of 20 Created On Tue Feb 28 00:48:40 IST 2017 12 of 20 R/SCR.A/9113/2016 ORDER bearing on the question of imprisonment, while the provisions in Sections 423 to 435 are general provisions regarding execution of sentences. Under S. 417, the State Government is empowered to appoint place of imprisonment and accordingly, it may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined. Section 418 provides for execution of sentence of imprisonment. It interalia provides that where the accused is sentenced to imprisonment for life or to imprisonment for a term in cases other than those provided for by Section 413, the Court passing the sentence shall forthwith forward a warrant to the jail or other place in which he is, or is to be, confined, and unless the accused is already confined in such jail or other place, shall forward him to such jail or other place, with the warrant. Subsection (2) of Section 418 provides that where the accused is not present in Court when he is sentenced to such imprisonment, the Court shall issue a warrant for his arrest for the purpose of forwarding him to the jail or other place in which he is to be confined; and in such case, the sentence shall commence on the date of his arrest. Under Section 419, every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or is to be, confined. It is therefore, clear that as per the concept of imprisonment as it is understood in context of the offences for which such punishment is imposed, physical confinement of the person in jail or other appointed place is the mode for executing such sentence of imprisonment. When the person is present before the Court at the time when sentence of imprisonment is imposed, he is required to be forwarded with the warrant to the jail and when he is not present, warrant of his arrest is to be issued and the sentence of imprisonment in such a case would commence from the date of his arrest. Under Section 46 of the Criminal Procedure Code, the manner in which a person is to be arrested is laid down and it is provided that in making an arrest, the Police Officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. Therefore, the sentence of imprisonment can be executed only by arresting the person and confining him to the place appointed for imprisonment. It is also significant to note that under Section 430 of the Code, it is only when a sentence has been fully executed that the officer executing it shall return the warrant with an endorsement under his hand certifying the manner in which the sentence has been executed.
30 In my view, the learned Magistrate committed no error in issuing a nonbailable warrant of arrest for the purpose of execution of the sentence.
Page 12 of 19
HC-NIC Page 13 of 20 Created On Tue Feb 28 00:48:40 IST 2017
13 of 20
R/SCR.A/9113/2016 ORDER
31 The fourth question is somewhat interrelated with the question No.3. It is not in dispute that the learned advocate, who was representing the applicant herein before the trial Court, was very much present when the trial Court pronounced the judgment and order of conviction and sentence. The learned advocate, in fact, tendered a pursis stating that the accused was sick, and therefore, was unable to remain personally present before the Court. It appears that a medical certificate was also produced. However, the ground of sickness did not appeal to the trial Court. In fact, it appears that two days before the date of the pronouncement of the judgment i.e. on 4th October 2015, the applicant accused had remained present before the Court. The question is whether it is permissible for the advocate to file an application under Section 389(3) of the Cr.P.C. for the purpose of suspension of the substantive sentence in the absence of the convict to enable the convict to prefer an appeal before the Sessions Court. Is it necessary to insist for the personal presence of the accused before an appropriate order is passed on such application. If the answer to this question is in the affirmative, then there would be no need for the trial Court to even pass an order of issue of warrant under Section 418(2) of the Cr.P.C. Section 389(3) of the Cr.P.C. would come into play when the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or where the offence of which such person has been convicted is a bailable warrant, and he is on bail, order that the convicted person be released on bail. In cases arising from conviction, under Section 138 of the Negotiable Instruments Act, obviously, it cannot be said that the accused is on bail. The expression being on bail and is on bail appearing in Sections 389(3)
(i) and (ii) of the Cr.P.C. must be read and understood reasonably to include an accused from whom the bail has not been demanded at all.
32 In the aforesaid context, Mr. Dave, the learned counsel appearing for the applicant accused has placed reliance on a decision rendered by a learned Single Judge of the Kerala High Court in the case of Jain Babu vs. K.J. Joseph reported in 2009(1) Crimes (HC) 629. Mr. Dave has placed reliance on the observations made by the Court as contained in para 30 as under:
If the accused is not on bail, execution of the sentence cannot be suspended under Section 389(3) Cr.P.C to enable an accused to prefer an appeal. The courts will be obliged to straight away execute the sentence. This may amount to denial of the right of an accused to get the sentence suspended to enable him to prefer an appeal, it is apprehended by some counsel. I find no merit in this apprehension. In a case where the accused is exempted under Section 205 Cr.P.C and the judgment of conviction is pronounced in his absence just, reasonable and orderly procedure mandates that the court must direct the accused to appear before court on a Page 13 of 19 HC-NIC Page 14 of 20 Created On Tue Feb 28 00:48:40 IST 2017
14 of 20 R/SCR.A/9113/2016 ORDER specified day for execution of sentence. Imbibing the mandate of Section 389(3) Cr.P.C, any reasonable Magistrate must post the case for appearance of the accused only on such a date, which will ensure that the accused gets reasonable time to prefer an appeal in the meantime. Further, I am unable to accept the contention that the language of Section 389(3) Cr.P.C would bar the suspension of sentence in a 138 prosecution, when the presence of the accused is exempted under Section 205 Cr.P.C. Under Section 389(3) Cr.P.C. when the accused is on bail, the sentence can be suspended. It will be succumbing to the tyranny of linguistic technicality to assume that when a court has chosen to exempt an accused from personal appearance and the obligation to seek bail, he will not be entitled to the benefit or advantage to which a person released on bail will be entitled to. The expressions "being on bail" and "is on bail"
appearing in Section 389(3) (i) and (ii) Cr.P.C. must be read and understood reasonably to include an accused from whom bail has not been demanded at all and who enjoys his freedom. A judicial functionary who is unable to find space to extend the benefit of Section 389(3) Cr.P.C to an accused who enjoys his freedom, who is not in custody, who has not been directed even to offer bail and who has been exempted from personal appearance under Section 205 Cr.P.C is definitely missing the woods for the trees. He lacks orientation in human rights jurisprudence and does lack the training to jump over insignificant fences. Sentence imposed on an exempted accused, in whose absence judgment is pronounced need not be executed till the next date of posting. On such next date he must be directed to appear in person or produce order of suspension if any from the appellate court. An exempted accused who has been directed only to appear to receive judgment must be held to be a person to whom the benefit of Section 389(3) Cr.P.C is available, he having been exempted already from the obligation to appear and offer bail. This apprehension is thus found to be without substance.
33 The view taken by the learned Single Judge is that the sentence imposed on an exempted accused, in whose absence the judgment is pronounced, need not be executed till the next date of posting. On the next date, the accused must be directed to appear in person or produce the order of suspension if any from the appellate court. The view taken is that an exempted accused, who has been directed only to appear to receive the judgment, must be held to be a person to whom the benefit of Section 389(3) Cr.P.C is available, he having been exempted already from the obligation to appear and offer bail.
34 In the case in hand, although the order was passed, in exercise of power under section 317(1) of the Cr.P.C. granting the necessary exemption, yet the order does not state that the accused shall only appear to receive the Page 14 of 19 HC-NIC Page 15 of 20 Created On Tue Feb 28 00:48:40 IST 2017
15 of 20 R/SCR.A/9113/2016 ORDER judgment. The order states that the accused shall appear as and when the Court directs.
35 It is difficult for me to concur with the view taken by the Kerala High Court that in the cases arising from the Negotiable Instruments Act, upon conviction, the accused automatically enjoys the benefit of Section 389(3) of the Cr.P.C. Of course, an application can be filed under Section 389(3) of the Code and the Court may pass an appropriate order in accordance with law. The question is about the personal presence of the accused for the purpose of passing an appropriate order upon the application under Section 389(3) of the Code.
36 I am of the view that in the absence of the convict accused, the learned advocate appearing for him cannot prefer an application under Section 389(3) of the Code for suspension of the sentence to enable the convict accused to prefer an appeal before the Sessions Court. When an order is passed under Section 389(3) of the Code for suspension of the sentence by the trial Court to enable the accused to prefer an appeal before the Sessions Court, then the accused has to furnish bail with necessary sureties. He has to execute the bail bonds. The order under Section 389(3) of the Code will come into force only when the accused furnishes the bail bonds. In such circumstances, in his absence, the learned advocate cannot be permitted to file such an application. There is one more reason in taking this view. If it is permissible for the learned advocate defending the accused to file an application under Section 389(3) of the Code for suspension of the sentence in the absence of the accused being personally present before the learned Magistrate, then the same would render Section 418(2) of the Code otiose or redundant. If the convicted person is released on bail under Section 389(3) of the Code and such person has to furnish the bail, how this process will be undertaken in the absence of the convicted accused. I am of the view that the learned Magistrate rightly observed in the order that the application under Section 389(3) of the Code was not maintainable since the convicted accused was not personally present before the Court. Thus, the fourth question is answered accordingly.
37 There should not be any difficulty in answering the fifth question in view of the answers to the questions Nos.(I) to (IV).
38 The Sessions Court, in my view, rightly refused to register the appeal having noticed that the convict accused had not remained present before the trial Court at the time of the pronouncement of the judgment and the trial Court had issued a nonbailable warrant of his arrest for the purpose of execution of the sentence. Over and above the trial Court for the reasons recorded had also declined to pass appropriate order on the application filed under Section 389(3) of the Cr.P.C.
Page 15 of 19
HC-NIC Page 16 of 20 Created On Tue Feb 28 00:48:40 IST 2017
16 of 20
R/SCR.A/9113/2016 ORDER
39 In the course of the hearing of this matter, there was some discussion as regards Sections 205 and 317 of the Cr.P.C. Let me take this opportunity of explaining the distinction between the two provisions of law. Section 205 of the Cr.P.C. which is in Chapter XVI i.e. commencement of proceedings before Magistrates, reads as follows:
205. Magistrate may dispense with personal attendance of accused (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.
40 Section 273 of the Code, which is in Chapter XXIII dealing with evidence in inquiries and trials provides:
273. Evidence to be taken in presence of accused:
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.
41 Section 317 of the Code reads as under:
317. Provision for inquiries and trial being held in the absence of accused in certain cases:
(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader, Page 16 of 19 HC-NIC Page 17 of 20 Created On Tue Feb 28 00:48:40 IST 2017 17 of 20 R/SCR.A/9113/2016 ORDER 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.
42 The provisions of Section 205 of the Cr.P.C. and Section 317 of the Cr.P.C. are two different and distinct provisions. They have been engrafted by the legislature knowing fully well the existence of each other. Section 205 of the Cr.P.C. gives a discretion to the Court to exempt a person from personal appearance till such time his personal appearance is necessary for the trial, whereas Section 317 of the Cr.P.C. is a provision, where, on any particular day if the accused required to be present in person is unable to come or appear, then he may seek leave and be absent and for this he is to move to the Court under Section 317 of the Cr.P.C.
43 In the aforesaid context, I may refer to a decision of the Supreme Court in the case of M/s. Bhaskar Industries Limited vs. M/s. Bhiwani Denim and Apparels Limited [AIR 2001 SC 3625]. I may quote the observations made by the Court as contained in paras 15, 16, 17, 18 and 19 as under:
15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal Courts. Due to the increase of interState transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings.
16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by magistrates. It enjoins on the Court to ask the accused whether he pleads guilty when the "accused appears or is brought before the Magistrate".
The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that "whenever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader."
Page 17 of 19
HC-NIC Page 18 of 20 Created On Tue Feb 28 00:48:40 IST 2017
18 of 20
R/SCR.A/9113/2016 ORDER
17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective 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, on 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 in his behalf would be present in Court and that 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 for 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 discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.
19. The position, therefore, boils down to this: 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 to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal Page 18 of 19 HC-NIC Page 19 of 20 Created On Tue Feb 28 00:48:40 IST 2017 19 of 20 R/SCR.A/9113/2016 ORDER presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."
7 I am inclined to give one opportunity to the applicants herein to appear before the learned 4th Additional Chief Judicial Magistrate, Vadodara in person with their advocates. On the day and date the applicants herein appear before the learned Magistrate, it will be open for them to file an application under Section 389(3) of the Cr.P.C. for provisional bail to enable them to prefer a criminal appeal before the Sessions Court against the conviction and sentence. The criminal appeal before the Sessions Court could have been registered only after an appropriate order under Section 389(3) of the Cr.P.C. was passed by the trial Court.
8 In any view of the matter, the nonbailable warrant is converted into a bailable warrant of the sum of Rs.10,000/ (Rupees Ten Thousand only). The applicants are directed to appear before the Court concerned within a period of one week from today and shall furnish a bail of Rs.10,000/ each. If any such application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass appropriate orders in accordance with law.
9 With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 19 of 19 HC-NIC Page 20 of 20 Created On Tue Feb 28 00:48:40 IST 2017 20 of 20