Kerala High Court
Noorjahan vs T.T. Moideen And Ors. on 27 June, 2000
Equivalent citations: 2000CRILJ4264
ORDER R. Rajendra Babu, J.
1. Whether the counsel can be allowed to answer the charge framed by the Court and make the plea of guilty or not guilty for and on behalf of the accused in warrant cases is the question for consideration.
2. The complainant in C.C. 330/95 before the Judl. I Class Magistrate's Court, Payyoli, filed this petition to quash the order allowing the counsel for the 1st respondent (the 1st accused) to answer the charge framed by the Court through the counsel. The petitioner filed the complaint C.C.330/95 against the 1st respondent, her husband and against the 2nd respondent (the brother of 1st respondent) alleging the commission of offence Under Section 498A r/w. Section 34, IPC. The respondents appeared before Court and they were released on bail. The 1st respondent was working abroad and he surrendered his passport before the Court below. Later, he filed a petition for the release of his passport and the Court below as per its order dt. 21-4-1998 ordered for the release of the passport on the 1st respondent executing bond for Rs. 25000/- with two sureties. Later the 1st respondent had gone abroad. The 2nd respondent, who was released on bail, also had gone abroad and absconded. While so, the 1st respondent filed Cri. M. P. 2504/98 Under Section 205(1), Cr. P.C. to permit him to answer the charge and to plead "not guilty" through his counsel. The Court below allowed the above petition. The above order is under challenge.
3. Heard the learned counsel for the petitioner and for the 1st respondent.
4. The learned counsel for the petitioner argued that the Court below had gone wrong in permitting the counsel for the 1st accused to answer the charge and to plead for the accused as the Magistrate had no discretion to permit the counsel to answer the charge in a warrant case even though such discretion can be exercised in summons cases. The learned counsel for the 1st respondent argued that the Court has the discretion to record the plea of the accused through his counsel even in warrant cases and the order permitting the counsel to answer the charge against the accused was proper and in accordance with law and it is not liable to be interfered.
5. Section 205, Cr. P.C. authorises the Magistrate to dispense with the personal attendance of accused. Section 205 reads :
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.
Even at the time of the issue of the summons the Court can dispense with the personal appearance of the accused in view of Section 205, Cr. P.C. In Raman Nair v. State of Kerala (1999) 3 Ker LT 714 a Single Judge of this Court held that the exemption from personal appearance can be granted even after the issue of summons to the accused on an application by the accused. Section 317, Cr. P.C. deals with the enquiries and trials being held in the absence of the accused. It reads :
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.
Section 317(1) authorises the Court to proceed with the trial of the case even in the absence of the accused if he is represented by a pleader and may, at any subsequent stage of the proceeding, direct the personal attendance of such accused. The learned counsel for the 1st respondent argued that the personal attendance of the accused is not at all essential at the time of taking the plea of the accused and the law does not insist such personal attendance of the accused, but permits the counsel to make the plea for and on behalf of the accused. Section 228 and Section 241, Cr. P.C. deal with the framing of charge in sessions cases and warrant cases respectively. Sub-section (2) of Section 228 and Sub-section (2) of Section 241 stipulate that the charge shall be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 and Section 241 deal with the conviction of the' accused on his plea of guilty in sessions cases and warrant cases respectively. Section 229 Cr. P.C. reads :
Conviction on plea of guilty.- If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
Section 241 reads :
Conviction on plea of guilty.- (1) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.
6. Section 251 says that in summons cases where the accused appears or brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. Section 252 stipulates that where the accused pleads guilty, the plea of the accused shall be recorded and the Court may, in his discretion, convict him thereon. Section 253 deals with the conviction on the plea of guilty in the absence of the accused in petty cases. Sub Section (1) says that where a summons had been issued under Section 206 and the accused desires to plead guilty to the Charge without appearing before the Court the shall transmit to the Court by post or toy messenger a letter containing his plea and also the amount of fine specified in the summons. Sub-section (2) stipulates that the magistrate in his discretion can convict the accused in his absence on his plea of guilty and sentence him to pay the fine specified in the summons and the amount transmitted by the accused shall be adjusted towards fine or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the plea of the pleader shall be recorded and the accused shall be convicted on such plea and sentence him. Section 254 stipulate the procedure when the accused is not convicted on such plea made Under Sections 252 and 253. If the accused is not convicted, the magistrate has to proceed to hear the prosecution and take all such evidence as maybe produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. The above provisions would make it clear that even if the accused makes a plea of guilty, the Court is not obliged to accept the plea of the accused and to convict him thereon but the Court has the discretion to direct the prosecution to produce evidence and to try the case without convicting the accused.
7. Sections 229, 241, 252 and 253(2) prescribe the procedure where the accused makes a plea of guilty. The above provisions confer a discretion on the Court either to convict the accused on the plea of 'guilty' or to direct the prosecution to let in evidence to prove the guilt of the accused before he is convicted. But if the plea is one of 'not guilty', it becomes imperative on the part of the prosecution to let in evidence and to prove the accusation against the accused and the Court has only to direct the prosecution to let in evidence. A consideration of the above provisions would reveal that the Court has to meet the following situations while taking the plea of the accused :
(1) where the accused makes a plea of 'not guilty', (2) where the accused makes a plea of 'guilty' but the Court, instead of convicting the accused, proceeds to take evidence, (3) where the accused makes a plea of 'guilty' and the Court proceeds to convict him on the plea of 'guilty'.
It is now to consider whether a uniform procedure need be followed by the Court in all the above situations and direct the personal attendance of the accused or the counsel can be permitted to make the plea of the accused in all or any of such situations. That too when Sees. 305 and 317 permit the Court to dispense with the personal attendance of the accused, and Section 253 specifically permitting the counsel to make a plea of 'guilty' in petty cases. A consideration of Section 253 would reveal that the Court can accept the plea and convict and impose a sentence on the accused where the pleader is authorised by the accused in this behalf makes the plea of guilty (emphasis given). The above provision would indicate that whenever the accused wants to make a plea through the counsel, the counsel has to be specifically authorised by the accused in that behalf. If a counsel has to be specifically authorised in that behalf, such authorisation should disclose whether the accused intends to plead 'guilty' or 'not guilty'. The Bombay High Court in Dorabshah Bomanji Dubash v. Emperor AIR 1926 Bombay 218 : 1926 (2) Cri LJ 440, while considering the question whether the estate manager of the accused can be treated as a pleader authorised by the accused to represent him, held that whenever there is a deviation from the general law, and it is allowed, there should be something on record to show that the person who represents the accused has been duly appointed by him for that purpose. There it was further held that where the Court dispenses with the personal attendance of an accused under Section 205, Cr. P.C, the Court should note upon the record that permission under Section 205 had been granted and also that the Court can act upon the plea of the counsel in cases falling under Sections 242 and 243, Cr. P.C. (summons cases).
8. S.R. Jhunjhunwalla v. B.N. Poddar 1988 Cri LJ 51 the Calcutta High Court held:
Section 205 is a general provision from the scope of which Section 251 has not been excepted. Therefore, when in a summons case the accused has been exempted from personal attendance and permitted to appear by his pleader under Section 205, the pleader can take the plea of guilty or not guilty in the examination under Section 251. The presence of the accused is not an absolute necessity while being examined under Section 251 and pleading guilty or not guilty. NO doubt, the Magistrate has a discretion under Section 205(2) to require the personal appearance of the accused but that discretion must be exercised judicially. When the Magistrate has exempted the accused from appearing before him during the trial, he must indicate reasons why such exemption was being withheld. Where the discretion of the Magistrate requiring the personal attendance of the accused for being examined under Section 251 was founded on a wrong view of law that the presence of the accused was an absolute necessity while being examined under Section 251, the order of the Magistrate requiring the presence of the accused is bad. Under Section 313(1)(b) proviso also the Court can dispense with the examination of any person whose personal attendance has been dispensed with by it. This also indicates that in taking the plea of guilty or not guilty under Section 251 an accused can be examined in his absence through his pleader who is representing him under Section 205.
The same view was taken by the Delhi High Court in S. Nihal Singh v. Arjan Das 1985 Cri LJ 467. There it was further held :
It cannot be said that if Section 251 is read in conjunction with Section 252 the plea to the substance of accusation has only to be re-corded on the personal appearance of the accused. Section 252 simply lays down that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Evidently this section has no bearing on the question whether the personal appearance of the accused is imperative when substance of accusation is to be read under Section 251. It would in other words, mean that the word "accused" in Sections 251 and 252 is not limited to the person of the accused but may include a pleader where he is permitted by the Court to appear through him.
I am in full agreement with the above view taken by the Calcutta and Delhi High Courts. The above decisions would make it clear that in summons' cases when the personal attendance of the accused is exempted under Section 205, Cr. P.C, the plea of the counsel : can be taken for and on behalf of the accused even if the plea is one of guilty.
8A. The question would be different when the accused in a warrant case seeks permission to allow, the counsel to plead 'guilty' or 'not guilty' for and on behalf of him when he appeared and was exempted from personal appearance under Section 317 Cr. P.C. So far as the plea is one of 'not guilty', the Court has no further discretion to be exercised as the ', discretion already exercised in granting exemption would take in granting permission to the accused to have his plea of not guilty made through the counsel, as a plea of 'not I guilty' in such cases is only procedural in nature. If the plea is one of 'guilty', the nature and consequences are different. There also some distinction has been drawn with respect to the cases where the Court is not inclined to convict the accused on the basis of the plea of guilty and where the Court is inclined to convict and impose sentence on the accused. In the case of accepting the plea of the accused and convicting the accused also, a distinction has to be drawn between the cases where a sentence of fine alone need be imposed on the accused and where imprisonment has to be imposed on the accused. The law says that the Court has the discretion to accept the plea of the accused and convict the accused thereon. Section 228(1) and Section 240(1) says that a charge has to be framed after considering the nature of the allegations made against the accused, the nature of evidence that is collected and produced before Court and hearing the prosecution and the accused. So, when the charge is framed against the accused, the Court is expected to be fully aware of the nature of the allegations, the gravity of the offence and also aware of the consequences as to whether the Court has to accept the plea of guilty made by the accused and convict him thereon or to direct the prosecution to let in evidence. In fact, in all cases where the Court is not inclined to convict the accused on the basis of the plea of guilty made by the accused, the personal attendance of the accused may not be essential and his personal appearance can be dispensed with and the counsel can be allowed to make the plea for and on behalf of the accused. Likewise, where the Court is inclined to accept the plea of the accused and to convict him and to impose a sentence of fine alone, the personal appearance of the accused can be dispensed with in view of Section 353(6) Cr. P.C. which says that the personal appearance of the accused can be dispensed with at the time of the judgment if the sentence is only of fine and in such cases also the Court can dispense with the personal appearance of the accused and the plea of the counsel can be recorded. But if the Court is inclined to impose a sentence of imprisonment on the basis of the plea of guilty of the accused, then the Court has to consider whether the personal attendance of the accused is to be insisted or not. A consideration of the above provisions would reveal that in all cases where exemption from the personal attendance is granted and where the plea is one of 'not guilty' the Court has only to allow the counsel to plead 'not guilty' for the accused, as such a plea is only of a procedural nature. In cases where the personal attendance of the accused is exempted under Section 205, Cr. P.C. and it is a summons case, the Court has to record the plea of the counsel for and no behalf of the accused even if the plea is one of 'guilty'. But in warrant cases the Court has to exercise its discretion in a judicial manner considering the nature and gravity of offences and the consequence of accepting the plea. Thus the Court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the counsel recorded for and on behalf of the accused, when he is specifically authorised for the purpose and in appropriate cases. If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and on the basis of such plea, the Court can either convict the accused or proceed to have the trial.
9. In the present case the counsel had applied for permitting him to make a plea of 'not guilty' for the accused and the Court allowed the above application. So far as the request is one for making a plea of 'not guilty', the Court has only to allow it and the Court below is fully justified in allowing the application. There is no reason for interfering with the above order of the Court below and as such this Cri. M.C. has only to be dismissed.
10. The learned counsel for the 1st respondent submitted that a direction may be given to the Court below to dispose of the case as expeditiously as possible as it was a case of 1995. Being a case of 1995,1 think it proper to direct the magistrate to dispose of the case as expeditiously as possible, at any rate within a period of four months from the date of receipt of this order.
In the result this Cri. M.C. is dismissed. The learned magistrate is directed to dispose of the case as expeditiously as possible, at any rate within a period of four months from the date of receipt of a copy of this order.