Allahabad High Court
Ashutosh Srivastava And Ors. vs State Of U.P. And Anr. on 27 July, 1995
Equivalent citations: II(1996)DMC670
JUDGMENT I.S. Mathur, J.
1. This petition under Section 482, Cr. P.C. is directed against the order dated 31.1.1995 requiring personal appearance of the petitioners in the Court in Criminal Case No. 545 of 1994 under Section 406, I.P.C.
2. The relevant facts are not in dispute. The opposite party No. 2, Smt. Namita Anand, daughter of Dr. Anand Swarup Ashthana, a practising physician at Hardoi, was married to petitioner No. 1, Ashutosh Srivastava. The petitioners 2 and 3 are parents of Ashutosh Srivastava. Some differences appear to have arisen between Smt. Namita Anand and the petitioners as a result of which she went back to her parents. A decree of divorce is alleged to have been given. Smt. Namita Anand filed a complaint case under Sections 405/406, I.P.C. which is pending in the Court of Chief Judicial Magistrate, Hardoi. The complaint has been filed with the allegations that the articles mentioned in the list filed with the complaint were received by her as marriage gifts but have not been returned to her. Earlier summons were issued against the petitioners but they were allegedly not served. Bailable warrants were then issued against the petitioners and served on 11.11.1994 directing appearance on 21.11.1994. The bail bonds were furnished by the petitioners to the police. On the date fixed, the Counsel for the petitioners appeared in the Court. An application was moved before the Court for exemption with the averment that since they have furnished bonds to the police, it is not necessary for them to appear personally in the Court and they may be permitted to appear through a Lawyer. This prayer was opposed on behalf of the opposite party. By the impugned order, the learned Magistrate has rejected this prayer-pf the petitioners.
3. The petitioners have alleged that there was genuine apprehension regarding safety and security of the petitioners and there is no dispute about the identity of the petitioners nor it is otherwise legally required that they should be personally present in the Court. It is also alleged that earlier an application under Section 125, Cr.P.C. was moved by the opposite party No. 2 and the petitioners had -moved a transfer application wherein stay was granted by the Court.
4. I have heard learned Counsel for the petitioners, earned State Counsel as also the learned Counsel for the opposite party No. 2. There appears to be much force in the submission of the learned Counsel for the petitioners that it is not the mandatory requirement of law that the accused must appear personally in the Court. Sections 205 and 317, Cr.P.C. quite clearly indicate that the personal presence of the accused is not always necessary and on reasonable cause being shown, an accused may be exempted from personal appearance and he may be allowed to appear through Counsel. The said sections read 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."
"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, 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."
It is true that in both these sections, a discretion has been conferred on the Magistrate or the Court concerned to exempt an accused from personal appearance. But it is quite a settled law that whenever a discretion is given to a Court or to an authority, it has to be exercised fairly and in a just manner and not arbitrarily or in a whimsical manner. In modern times, when every person is busy earning his livelihood or is otherwise engaged most of the times in some work, it should not normally be considered to be mandatory for the accused to appear personally on every date. As of today, the Courts are flooded with cases and it may not be desirable, even for proper working of the Courts, that the accused in all the cases should appear personally and thereby crowd the Court rooms unnecessarily. It is not unusual that, on most of the dates, cases are required to be adjourned either for want of witnesses or for any other reasons. There are quite often no proceedings in the Court where the accused has to contribute personally for the progress of the case. If the case is not really fixed for the statement of the accused or for statement of witnesses who have to identify him or for any other purpose where the case cannot proceed without personal presence of the accused, there should normally be no reason for the Court to refuse request for exemption.
5. In Smt. Sita Kumari v. Lalit Kumar and Anr., 1990 JIC 488=I (1989) DMC 216, a criminal complaint was filed by one Smt. Sita Kumari against her husband and his brothers. The learned Magistrate summoned the accused under Section 204(1)(b),Cr.P.C. The petition was disposed of at the admission stage, inter alia, directing that the petitioners shall not be compelled to appear in person unless they are required for their statements or for judgment or if their Counsel withdraws. Smt. Sita Kumari then filed two applications against Lalit Kumar and State of U.P. with the submission that the aforesaid orders were passed without notice to her and the fact that non-bailable warrants had already been issued against the accused was suppressed. It was also contended that only the Magistrate could have exempted the personal appearance of the accused and this Court has no jurisdiction to exempt their personal attendance. This Court rejected these submissions and observed :
"But so long as the charges are not framed or the accused is not required . for statement under Section 313, Cr.P.C. the complainant has no vested right in personal attendance of the accused. Section 205(1), Cr.P.C. authorises the Magistrate issuing summons, if he sees reason to dispense with the personal attendance of the accused and permit him to appear by his Pleader. Exercise of power of the Magistrate under Section 205(1) Cr.P.C. is a matter between the Magistrate and the accused. For determining whether personal attendance of accused should be dispensed with and he should be permitted to appear by his Pleader, the Magistrate has to reasonably use his discretion after due consideration of all the attending circumstances including social status, customs, and practice of the accused and the necessity of personal presence having regard to the nature of offence and stage of the trial. This discretion should ordinarily be exercised liberally. Magistrates in U.P. should not overlook that they have large number of cases in their Courts and if they require all the parties to the cases before them to appear personally, the Court rooms and Verandahs in front of Court rooms shall remain overpacked blocking even the passage of the Lawyers to enable them to appear at the Bar."
6. In Manager, V.G. Panneerdas & Co., Madras and 4 Others v. Nataraja Thevar, 1988(1) Crimes 222, a private complaint was filed against the accused for cheating, criminal breach of trust and defamation. Summons were issued for their appearance on 28.4.1981. On that day, the petitioner's Counsel appeared in Court and filed an application under Section 205(1), Cr.P.C. for dispensing with the appearance of the petitioners and permitting them to be represented through their Counsel, on the ground that the petitioners were residing in Madras and were doing extensive business in Madras and in other places. The request was rejected by the Trial Court. The order of the Magistrate was challenged before the Madras High Court. The Madras High Court referred to Section 205, Cr.P.C. as also Section 317, Cr.P.C. and held that there is nothing in those provisions or anywhere else in the Code making it mandatory for the accused to appear personally even on the first hearing. The Court observed :
"Nowhere in the Criminal Procedure Code do we find that the accused has to be present at each and every hearing of the case. To require so would cause hardship to the accused and would also stand in the way of an expeditious trial. Section 317, Cr.P.C, provides for a trial being held in the absence of the accused, if the accused is represented by a Pleader and the Court is satisfied that the personal attendance of the accused is not necessary."
The Madras High Court has further observed :-
"In cases where the accused are not likely to abscond and the question of identifying the accused by the prosecution witnesses may not arise or where the accused are woman sick and old labourers earning daily wages or even Industrialists, whose presence would even periodically take them abroad, Courts should judiciously use their discretion under Section 205, Cr.P.C. in favour of the accused."
7. In Ajit Kumar Chakraborty and Ors. v. Serampore Municipality, 1989 Cri.L.J. 523, a criminal complaint was filed against the petitioners. The Court issued summons for appearance. An application was moved for exemption from personal attendance by the petitioners. The prayer was, however, rejected by the learned Magistrate. The High Court accepted the contention of the petitioners that there is nothing in the Code making it mandatory for the accused to appear personally even on the first hearing.
8. In Mt. Sarji v. Mt. Bhimi, AIR 1930 Nagpur 61, the Nagpur High Court has laid down that the personal attendance of the accused can be excused in all cases where the summons are issued in the first instance to him irrespective of the fact whether he appears in answer to the summons or has to be brought in by a warrant of arrest issued subsequently. It has been further held in this case that the High Court can, under its inherent powers, pass an order excusing the personal attendance of the accused and permitting him to represent himself in Court by a Pleader.
9. In Brigadier R.C. Dhingra (Retired) and Anr. v. State, 1993 HVD (Alld) Vol. III, at page 53, this Court has taken the view that if progress of the case is not hampered by absence of the accused, his personal presence can be dispensed with.
10. It is quite apparent from the bare reading of the aforesaid provisions, contained in the Criminal Procedure Code as also from the decisions noted above that it should not be considered mandatory for the accused to appear personally where his personal presence is not required for progress of the case provided, of course, he is represented by a Lawyer. It is also quite evident that the power conferred upon the Courts under Sections 205 and 317, Cr.P.C. must be exercised liberally with a view to ensuring that the accused is not put to unnecessary harassment and also keeping in view that appearance of the accused on such dates where his personal presence is not necessary for the progress of the case, may unnecessarily crowd the Court rooms without furtherance of justice. As indicated above, it must also be kept in mind by the Magistrate that in modern times when everybody is busy either in their jobs or otherwise in their professions in order to make a decent living, they should not be required to attend the Courts unnecessarily as that may affect their work or business. It may further be kept in view that merely because a person is accused of an offence, he cannot be presumed to be guilty unless the Court holds him guilty. Therefore, to deny the privilege of being represented through Counsel without any sufficient reason cannot be said to be proper or desirable.
11. It is also evident from the aforesaid decisions and the provisions of the Code that there is no law requiring personal appearance of the accused even on the first day of hearing and there is no legal objection if even on a first hearing, the accused is allowed to be represented through a Counsel and, further, even this Court can issue an appropriate direction for exemption from personal appearance in exercise of its inherent powers.
12. Nothing to the contrary has been laid down in Niranjan Singh and Another v. Prabhakar Rajaram Kharote and Ors., 1980 Cri. L.J. 426, relied upon by the learned Counsel for the opposite party No. 2. In.the case, relied upon by the learned Counsel, Hon'ble Supreme Court was not concerned with the points in issue. That was a case wherein the matter raised and decided related to the question as to whether an accused could apply for bail unless he is in custody. As shall be presently noticed, no such question arises in the present case.
13. In the present case, it appears that summons were not served on the petitioners. A bailable warrant was issued and the petitioners furnished the requisite bond, before the police for appearance. On the date fixed, their Counsel appeared before the Court and moved an application for exemption. The learned Magistrate rejected this application taking the view that it was necessary for the accused to have appeared personally as the sureties had undertaken appearance of the accused on a particular date only and the accused had to apply for bail and file fresh bonds. It is difficult to subscribe to the view taken by the learned Magistrate. No provision of law has been indicated by the learned Magistrate and there appears to be none according to which it is mandatory for an accused, against whom a bailable warrant has been issued, to appear personally and obtain fresh bail from the Court even if he had already furnished security as directed in the warrant. In fact, it is evident from Section 71, Cr.P.C. and Form No. 2 of the II Schedule, prescribed therein, that if, in the case of a bailable warrant, accused has furnished security as directed in the warrant, it is no more mandatory for him to appear personally in Court. It may be useful to reproduce these provisions:
"71. Power to direct security to be taken.-(l) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state-
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound;
(c) the time at which he is to attend before the Court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court."Form No. 2
Warrant of Arrest (See Section 70) To (Name and designation of the person or persons who is or are to execute the warrant) WHEREAS (name of the accused) of (address) stand charged with the offence (State the offence) you are hereby directed to arrest the said........., and to produce him before me. Herein fail not.
Dated, this......................................day of....................19......................
Seal of the Court (Signature) This Warrant may be endorsed as follows-
Ifthesaid.......shall give bail himself in the sum of Rupees..........with one surety in the sum of Rupees ......(or two sureties each in the sum of Rupees..........) to attend before me on the.............. day of........and to continue so to attend until otherwise directed by me, he may be released.
Dated this...................day of......................., 19.....
Seal of the Court, (Signature) It is evident from these provisions that, while issueing a Warrant, the Magistrate may direct, by endorsement on the Warrant, that, if the accused executes a bond with surety or sureties for his attendance in the Court, the Officer to whom the Warrant is directed shall release the person from the custody. Form No. 2 prescribes the form of endorsement to be made in accordance with Section 71. It provides that the endorsement has to indicate that, if the accused-
(1) gives bail in the sum directed, (2) with one or two sureties in the sum mentioned, (3) to attend before the Court on the day mentioned "and to continue so to attend until otherwise directed,"
he may be released. It is to be particularly noticed that it is a mandatory requirement of Section 71 that the Magistrate should not only direct the personal bond and sureties for appearance on a specified date but also for dates "thereafter". In other words, according to these provisions, the order of the Magistrate must indicate that the personal bond and surety/sureties bonds shall contain an undertaking not only that the accused shall appear on a particular day but also that he will "continue so to attend until otherwise directed". The bailable warrant issued by the Magistrate, which does not contain such a direction, or failure of the Police Officer to obtain such an undertaking inspite of such a direction, is clearly violative of the specific provisions of law. For such failure on the part of the Magistrate or the Police Officer, the accused cannot be put to avoidable inconvenience or harassment by insisting his personal appearance or requiring him to move for bail afresh.
14. Indeed, it is difficult to accept the view, taken by the learned Magistrate that, in such circumstance, the accused must appear personally and obtain fresh bail from the Court. As has been noticed in the earlier part of this judgment, personal presence of an accused even on the date of first hearing, is not mandatory requirement of law and exemption could be granted for the day as well. Even if the surety bond indicates that the surety has undertaken appearance of the accused on a particular date, he is quite obviously not in custody on the date of such appearance. He has already been released from custody after complying with the conditions mentioned in the warrant and when he appears in the Court on the date fixed, he has not appeared, nor he can be said to have been brought, in custody.
15. It hardly needs to be stated that a person can legally move for bail only if he is in custody, see Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors., 1980 Cri. L.J. 426 (SC). Since an accused, after obtaining bail in pursuance of the condition mentioned in the bailable warrant, cannot be said to be in custody any more when he appears in the Court on the date indicated in the warrant, he cannot legally apply for bail.
16. If the warrant issued by the learned Magistrate did not contain a direction regarding personal bond and sureties being for appearance on subsequent date also or, inspite of such direction, the Police Officer does not take an undertaking from the surety, proper course open for the Magistrate is to direct the accused to file fresh/additional surety bonds for the purpose within a specified reasonable time rather than require him to apply for bail afresh. When a Magistrate issues a bailable warrant, he has quite obviously already granted bail subject to the condition mentioned in the warrant, i.e. subject to the condition of furnishing personal bond and surety bonds. That being so, there is no question of requiring the accused to apply for bail afresh. If some mistake has crept in, in the order passed by the learned Magistrate or in the bail obtained by the Police Off icer, the Magistrate should only try to rectify that mistake. That could be done merely by directing the accused to furnish fresh/additional surety bonds for appearance on the subsequent dates. For this purpose also, personal appearance of the accused is not absolutely necessary if he is represented by a Counsel. Accordingly, the prayer of the petitioners for exemption should not have been refused by the learned Magistrate on the premises that it was necessary for them to have appeared personally. It must, therefore, be held that, even if it be true that the surety bond did not specify an undertaking that the accused shall appear on subsequent dates also, the learned Magistrate should have passed an order requiring fresh/additional surety bond for appearance of the accused an subsequent dates and for that purpose, the personal presence of the accused on that date was not at all necessary.
17. It is true that it is the discretion of the learned Magistrate to grant exemption but, as already indicated above, this discretion has to be exercised reasonably and fairly and not arbitrarily. If there are reasonable grounds for granting exemption and it is not mandatory; according to law, that the accused should appear personally on a particular date, the discretion must be exercised liberally in favour of the accused.
18. In the present case, the reasons for exemption, given by the petitioners, make out a patently reasonable case of exercising discretion in their favour. The petitioners are residents of Lucknow whereas the case is pending at Hardoi. The petitioner No. 1 is serving as Deputy Manager, S.I.D.C. and the petitioner No. 2 is Senior Medical Officer in Northern Railway. Both are posted at Lucknow. The petitioner No. 3 is the wife of petitioner No. 1. Quite obviously, if the petitioners are required to appear in Court at Hardoi on every date or on the dates where their presence may not at all be necessary for further progress of the case, they will unnecessarily face harassment and inconvenience. The petitioners 1 and 2 cannot obviously get unlimited leave and. accordingly, unless their presence be necessary for further progress of the case, their personal presence in the Court may not be insisted upon. The petitioner No. 3 is a lady who could not normally undertake a journey alone and may not really be required otherwise also to appear personally unless that be absolutely necessary. The petitioners have also alleged that they apprehend danger to their person as, according to them, they are being threatened and for that reason, they had moved a petition, Criminal Misc. Case No. 521 of 1994, before this .Hon'ble Court for transfer of a case under Section 125, Cr.P.C. filed by the opposite party and this Court had stayed the proceedings (vide Annexure-2). It is unnecessary to determine or comment upon the correctness or otherwise of these allegations, except to note that the petitioners have stated in the petition for transfer of the case under Section 125, Cr.P.C. that the case be transferred to Lucknow or to some other neighbouring district. Intention does not appear to be that the case should necessarily be transferred to Lucknow. The prayer is that it may be transferred from Hardoi to Lucknow or to any neighbouring district. This indicates that there may be some reasonable apprehension in the minds of the petitioners even though, as contended by the learned Counsel for the opposite party No. 1, it may not be really true. In this case, no question of identification is involved and for that reason either it may not be necessary that the petitioners should appear personally during evidence. In my opinion, therefore, it is proper, in the interest of justice, that the petitioners be granted exemption from personal appearance unless, on a particular date, it may be absolutely necessary for the progress of the case, i.e. for framing a charge, recording statement under Section 313, Cr.P.C, delivery of judgment or for any other reason of like nature.
19. It is obvious from the decisions, referred to in this judgment, that there is no legal bar in this Court itself granting exemption. In my opinion, this may be considered to be appropriate to avoid any further confusion or prolongation of the proceedings as also for the reasons already indicated in the earlier part of this judgment.
20. The petition is accordingly allowed in terms hereinafter mentioned. The order dated 31.1.1995, in so far as it directs the petitioners to obtain fresh bailor rejects the prayer for exemption from personal appearance, is quashed. The petitioners shall not be compelled to appear hi Court in person and shall be permitted to appear through Counsel unless their appearance on any date be necessary for further progress of the case, that is, for framing of charge, if any, recording statement under Section 313 Cr.P.C, delivery of judgment, absence of their Counsel or for any other reason of like nature, provided that, in case the surety bonds already filed do not contain an undertaking for appearance on subsequent dates, they file surety bond (s) with such an undertaking in the sum mentioned in the bailable warrants and, if no sum is mentioned therein, in the sum as may be directed by the learned Magistrate, within 15 days from today. For this purpose, personal appearance of the accused shall not be necessary. It is made clear that this order shall not be interpreted to mean thatthe concerned Court will not be entitled to direct personal appearance of the petitioners, or to issue a process against them in case they fail to comply with such a direction, if, for reasons indicated in this order, the personal presence is necessary.