Andhra HC (Pre-Telangana)
Shyam Prasad Reddy And Ors. vs State Of Andhra Pradesh And Ors. on 13 March, 1991
Equivalent citations: 1991(2)ALT121, 1991CRILJ2299
ORDER
1. The petitioners are the accused in C.C. 166/90 in the court of the Judicial I Class Magistrate, Gudur. That case was instituted on a complaint filed by the 2nd respondent. The learned Magistrate having taken cognizance of the offence u/S. 2 of the Prevention of Insults to National Honour Act, 1971 issued summons for the appearance of the accused on 7-9-1990. On that day the accused filed a petition Crl.M.P. 2215/90 before the learned Magistrate u/S. 205(1), Cr.P.C. requesting that their personal appearance may be dispensed with and they may be permitted to appear through their counsel as they are busy persons moving about various places in connection with their business. The learned Magistrate passed orders dispensing with the personal attendance of the accused on that day but directed the accused to appear in person on the next day of hearing on 19-10-90. The petitioners have filed this petition u/S. 482, Cr.P.C. to quash the order of the learned Magistrate in Crl.M.P. 2215/90 in so far as it directed them to appear on the next hearing date 19-10-1990.
2. The learned counsel for the petitioners contended that the petitioners are film producer and film director and are busy in connection with their film shooting and so it will be difficult for them to attend the Magistrates Court and therefore contended that the learned Magistrate should have passed a blanket order dispensing with their personal attendance throughout the trial of the case. It is further contended that the learned Magistrate did not exercise his discretion properly in directing the petitioners to appear in the trial court on 19-10-90 and therefore requested that the High Court may exercise its inherent power u/S. 482, Cr.P.C. and pass an order dispensing with the presence of the accused throughout the trial of the case.
3. The learned counsel for the 2nd respondent i.e., the complainant has urged that u/S. 205, Cr.P.C. the discretion is vested in the trial court to dispense with the presence of the accused and when the learned Magistrate has exercised his discretion and dispensed with their presence on the condition that they should appear on the next date of hearing, it cannot be held to be an improper exercise of the discretion and the High Court should not impose its own discretion for the discretion exercised by the trial court.
4. In order to appreciate the rival contentions, it will be useful to refer to the relevant provisions of the Cr.P.C. S. 205 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 to do so, 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 herein before provided."
In this case as the Magistrate has issued summons for the appearance of the accused he has the discretion to dispense with the personal attendance of the accused and permit him to appear by his pleader. But sub-sec. (2) provides that the Magistrate may in his discretion direct the personal attendance of the accused at any stage of the proceedings. S. 273 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."
Section 317 says -
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.".
A combined reading of these two provisions would show that normally in trials of criminal cases the evidence has to be recorded in the presence of the accused unless his personal attendance is dispensed with. The learned counsel for the petitioners has referred to a Full Bench decision of the Allahabad High Court reported in Sultan Singh v. The State in which it is pointed out that "The rule that the trial should be in the presence of the accused is, no doubt, mainly for the protection of the interest of the accused. This does not, however, mean that if the accused wants to absent himself from Court, the Magistrate is bound to grant his prayer. If, however, an accused person has prayed for exemption and the Court has granted him exemption from personal attendance, it is not open to the accused to whom such exemption was granted to complain that the exemption was wrongly granted to him and the trial, therefore, should be held to be null and void". In Bhagwan Das v. State, a Division Bench of the Allahabad High Court pointed out, "The law enjoins that an accused should be present during the course of the trial more to safeguard his interests than to cause him inconvenience. In a case where the accused himself applies to the Court to be exempted from personal appearance, then a Court should grant the request unless it is of opinion that in the interests of justice it is necessary that the accused should be present throughout the course of the trial, or unless there are some other good reasons for directing the presence of the accused throughout the course of the trial." The learned counsel for the petitioners also referred to the Full Bench decision of the Calcutta High Court in Prova Debi v. Mrs. Fernandes, . The majority judgment held "Where a Magistrate has permitted an accused to be represented by a pleader u/S. 205(1) or S. 540-A(1) he is not bound to compel the appearance of the accused for examination under S. 342 of the Code of Criminal Procedure; he may exercise his discretion in the matter, and examine the pleader of the accused on his behalf." Relying on these decisions the learned counsel for the petitioners has contended that the requirement that the accused shall be present at the trial of the case is for the benefit of the accused but when the accused in this case have filed petition to dispense with their personal attendance as they are represented by an advocate the learned Magistrate ought to have dispensed with their personal attendance at every stage in the trial. He has pointed out that even at the time of the examination of the accused the presence of the accused can be dispensed with and they can be represented by their counsel and even at the time when the judgment is pronounced the presence of the accused is not necessary where he is acquitted or where a sentence of fine is only imposed as provided u/S. 353(6), Cr.P.C.
5. A review of the decisions referred to above would show that the trial court has undoubtedly the discretion to dispense with the personal attendance of the accused either u/S. 205, Cr.P.C. or at any stage of the trial u/S. 317, Cr.P.C. That discretion, as pointed out by the learned counsel for the petitioners, has to be exercised by the court judiciously having regard to the circumstances of the case. If such discretion is not properly exercised the learned counsel for the petitioners has pointed out that the High Court should interfere in exercise of its powers u/S. 482, Cr.P.C. and grant relief in appropriate cases. In support of his contention he has referred to the decision of the Madras High Court in Manager, V. G. Panner Das and Co. v. Nataraja Thevar (1988) 1 Crimes 222 in which it is pointed out "While S. 317, Cr.P.C. covers the stage after the commencement of enquiries or trial, S. 205 Cr.P.C. deals with the commencement of proceedings before the Magistrate, thereby indicating that for proper reasons the presence of the accused could be dispensed with right from the initial stage. When the Code itself specifically provides u/S. 205(1), Cr.P.C. that even for the first appearance the Court for reasons could dispense with the personal attendance of the accused and permit him to appear by pleader, the above provision should not be rendered nugatory by the trial Court adopting a practice, as in this case, and insist on the personal attendance of the accused for the first hearing whatever the circumstances may be. Such insistence is against the spirit and the letter of the law". The learned Judge after referring to the facts of that case held that "While so, the judicious exercise of the discretion u/S. 205, Cr.P.C. would require dispensing with the personal attendance of the petitioners and permitting them to appear through their counsel even at the first hearing. That discretion not having been exercised in a judicious manner, the order passed by the court below has to be set aside and the learned Magistrate was directed to permit the petitioner to appear through their pleader even for the first hearing. In N. Hannamma v. State of A.P. (1978) 2 Andh LT 169 it is held, "In a case where the accused himself applies to the Court to be exempted from personal appearance then a Court should grant his request unless it is of opinion that in the interests of justice it is necessary that the accused should be present throughout the course of the trial, or unless there are some other good reasons for directing the presence of the accused throughout the course of the trial". In Chimanlal v. Parashar Singh, AIR 1957 Nagpur 101 : (1957 Cri LJ 1430) it is pointed out that "The High Court has inherent powers u/S. 561-A (Old Cr.P.C.) to exempt an accused from appearance in Court beyond those contained in Ss. 205 and 540A.". But I am unable to agree with the view taken by the learned Judge of Nagpur High Court because, where there is a specific provision in the Code, the inherent powers cannot be exercised. The Supreme Court has pointed out in Khushi Ram v. Hashim, AIR 1959 SC 542 : (1959 Cri LJ 658). "The inherent powers of the High Court under S. 561-A cannot be invoked in regard to matters which are directly covered by specific provisions of the Code and hence the High Court is clearly in error in invoking that section in quashing a commitment proceeding which is a matter directly covered by S. 215." The learned counsel for the 2nd respondent i.e. complainant has relied on this decision in support of his contention that when a discretion is vested in the Magistrate u/S. 205(2), Cr.P.C. to direct the personal attendance of the accused he can do so and the High Court cannot substitute its own discretion by use of the inherent powers u/S. 482, Cr.P.C. He also referred to another decision of the Madhya Pradesh High Court in Kamla Bai Gopalrao Jamdar v. Chief Judicial Magistrate, Gwalior 1990 Cri LJ 2550 in which it is pointed out "Exercise of discretionary powers vested in a court is not open to interference at the hands of a superior Court so long as it is exercised reasonably, in good faith and on correct grounds. An error of discretion should not be confused with error of jurisdiction nor with a mere difference of opinion. One may call the other quite unreasonable when he is well within the bounds of reasonableness. To exceed them he must be so wrong that no reasonable person would sensibly take that view". As could be seen from the facts of the case the Chief Judicial Magistrate was not satisfied with the solvency of the surety and refused to accept the surety bond. It is the satisfaction of the learned Magistrate and not of this High Court which would be relevant. A superior court would not be inclined to interfere with the exercise of such discretionary power ordinarily.
6. In the light of these decisions can it be said that the learned Magistrate did not exercise his discretion judiciously in directing the accused to appear on the next date of hearing i.e. 19-10-1990. As I have stated above the learned Magistrate had exempted the personal attendance of the accused on the 1st date of the hearing i.e. 7-9-1990 but directed them to appear on the next date i.e. 19-10-1990. It may be noted that the accused in their petition Crl.M.P. 2215/90 filed before the learned Magistrate has undertaken to appear if and when necessary before the court. Obviously that is in accordance with sub-sec. (2) of S. 205 which enables the Magistrate to direct the personal attendance of the accused at any stage of the proceedings. When the learned Magistrate dispensed with the personal attendance of the accused u/S. 205, Cr.P.C. on the 1st date of hearing and directed attendance on the next date of hearing he was acting perfectly within the scope of sub-sec. (2) of S. 205, Cr.P.C. I am unable to agree with the contention of the learned counsel for the petitioners that the learned Magistrate did not exercise his discretion judiciously. May be he has not recorded the reasons as to why he directed them to appear on the next date of hearing. But that discretion was exercised in accordance with sub-sec. (2) of S. 205, Cr.P.C.
7. It is represented that this case which is filed u/S. 2 of the Prevention of Insults to National Honour Act, 1971 is triable as a warrant case. S. 244 of the Cr.P.C. reads (1) when, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Therefore, when the accused appears on the 1st date of hearing or when his presence is dispensed with on that day, the subsequent stage of the case is when the case is posted for taking the evidence of the prosecution and as I have stated above S. 273 requires that the evidence shall be recorded in the presence of the accused unless his presence is dispensed with u/S. 317, Cr.P.C. Therefore, I do not find any improper exercise of the discretion on the part of the Magistrate in directing the petitioner to appear on the next date of hearing. The petitioners may, if so advised, file an application before the learned Magistrate to dispense with their attendance during the course of the enquiry trial u/S. 317, Cr.P.C. and the learned Magistrate may pass appropriate orders. But there are no grounds to interfere with the order passed by the learned Magistrate u/S. 205, Cr.P.C. The petition is, therefore, dismissed.
8. Petition dismissed.