Madhya Pradesh High Court
R.P. Gupta vs State Of M.P. And Anr. on 4 May, 2006
Equivalent citations: 2007(1)MPHT412
Author: Manjusha Namjoshi
Bench: Manjusha Namjoshi
ORDER Manjusha Namjoshi, J.
1. These revisions are under Section 397 read with Sections 401 and 482 of the Cr. P. C.
2. Both the revisions have one subject-matter, hence they are bring decided by one order. A copy of the order be tagged with other file.
3. The accused applicant is a General Manager, Vindhyachal Super Thermal Project/NTPC Ltd. Vindhya Nagar, District Sidhi. The respondent No. 2 had filed complaint under provisions of Sections 25-26 Inter State Migrant Workmen (RECS) Act, 1979 and the said complaint was registered by the Court of Judicial Magistrate Ist Class, Waidhan (Baidhan), Singrouli, District Sidhi. The Case No. is 65/2006. The other case is under Sections 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970. The Case No. is 67/2006.
4. The applicant had filed exemption applications in both the original cases before the lower Court under Section 205, Cr. P. C. for exemption from personal appearance. The trial Court by its orders dated 2-3-2006 kept the applications pending stating that so long the accused does not register his personal appearance his applications cannot be considered.
5. Parties heard, record perused.
6. On persual of the record appears that the petitioner was arrayed as accused by virtue of his post and he is not personally involved in the crime as such. The nature of offences alleged are neither heinous nor offences involving moral turpitude. They are just technical offences. The applicant is General Manager and is solely responsible for production, distribution and other works of power generation. His presence at the office and site is very much needed. The applicant was issued summons under Section 205, Cr. P. C. at the first instance therefore, the trial Magistrate did not make his appearance Compulsory or essential in the matter. Perhaps the trial Magistrate carried an impression that any person who is summoned as an accused in a case should for the first time appear in person and only then he should submit bail bonds as ordered by the Court and after completion of such formal-ties the Court may consider for exemption from appearance. Perhaps it is a common notion among Judges, that is why the trial Court kept the application pending in anticipation of appearance of the applicant.
7. The basic rule of Jurisprudence is the trial should be in the presence of the accused, is no doubt mainly for the protection of the interest of the accused. It is an essential principle of Criminal law that the trial of an indictable offence has to be conducted in the presence of the accused. This principle is embodied in Section 273 of the Cr. P. C. But at the same time that Section it self speaks about appearance of the accused through his counsel also. The discretion under this Section has to be exercised in a judicial manner and keeping in view of the circumstances of the case. Where the accused is not likely to abscond and the complainant is not prejudiced if exemption was granted, then it is a fit case for granting exemption. In the case of Halen Rubber Industries v. State of Kerala 1972 Ker LT 794 : 1973 Cri LJ 262, it was held that in all trivial and technical cases when accused are ladies, old and sick persons, workers in factories, dally wage earners, other labourers, and busy business people or industrialists, discretion under the Section should be exercised liberally. In fact Courts should be generous in exercising such power. The applicant is General Manager of the Government owned company and the offence is a technical one and there is absolutely no likelihood of his being abscond.
8. In the case of Ajit Kumar Chakraborty v. Serampore Municipality 1989 Cr LJ 523 (Cal) it was held that an accused need not personally appear and then seek exemption from personal appearance. The Section 205 permits that the Magistrate, when he issues summons, can grant exemption from personal appearance. Insistence of the appearance of the accused for seeking exemption was set aside in that case.
9. Thus, to summarise the matter the Courts should be generous and liberal in granting exemption to accused persons particularly in cases which are of trivial or technical nature. Personal appearance is the rule in criminal cases of a serious nature, involving moral turpitude. If the accused persons are duly represented by their counsel, their personal attendance may not be insisted by the Court.
10. The learned Counsel for the accused has submitted few citations:
11. In S. V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Ors. , it was held that while dispensing with personal attendance Court has to consider whether any useful purpose would be served by requiring personal attendance of accused or whether progress of trial is likely to be hampered on account of his absence. If at any stage trial Court comes to conclusion that accused persons are trying to delay completion of trial, it can refuse prayer for dispensation with personal attendance. In case of Akram and Anr. v. State of M.P. 2000 (2) Crimes 222, it was held that in petty cases accused should not be put to hardship in attending the Court and if he can defend through a lawyer, it is necessary that his presence need not be demanded, except where identification of accused is needed.
12. In this case question of maintainability of revision under Section 397(2) of Cr. P. C. was also considered and it was held that in deciding the question as to whether a particular order is Interlocutory, Court will have to see to what extent and as to how that order is affecting the fundamental right or legal right of a citizen. Order may not be final (as explained in Section 397(2), Cr. P. C.) but even then it could be causing Infringements to legal right of such a person. In such cases petition is maintainable under Section 397(1), Cr. P. C.
13. By way of caution it is further made clear that the presence of the accused is not necessary for explaining the charge to him under Section 240(2), Cr. P. C. It was thus, held in the case of Kanchan Bai v. State of M.P. . In the case of Ramkunwarbai v. State 1957 MPLJ (N) 88, it was held that when accused is appearing through Pleader; Pleader can plead guilty or not guilty for the accused. The Courts trying the cases should also keep in mind this fact when they grant exemption from appearance to the accused. A plea of the accused to a charge under warrant case (including a Sessions case) and particulars of offence under Summons case may be recorded through his counsel also.
14. In view of the above discussion the order of the trial Court dated 2-3-2006 is set aside to the extent of the subject-matter in revision and it is directed that after rehearing the application for exemption from appearance of the accused, the trial Court shall while keeping in view the opinion of this Court, pass suitable order looking to the nature of the case.
15. Parties are directed to appear in the trial Court on 19th May, 2006. The applicant is permitted to appear on that date through his counsel.