Karnataka High Court
Shakuntala vs Virupanna S. on 7 November, 2000
Equivalent citations: 2001CRILJ1129, 2001 AIR - KANT. H. C. R. 411
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER Mohamed Anwar, J.
1. Respondent is a private complainant and petitioner is the accused in C.C. No. 606/98 on the file of the Court below wherein the latter is being proceeded against for an offence under Section 138 of the Negotiable Instruments Act ('the Act' for short). Petitioner is represented by her learned counsel in the case before the learned Magistrate. She has been enlarged on bail on 26-2-1999 and her plea of not guilty is also recorded on 31-12-1999.
2. On 31-12-1999, after her plea was recorded, the petitioner being a widow and a permanent resident of Bangalore City, an application under Section 205, Cr.P.C. on her behalf was filed praying that the learned Magistrate may be pleased to exempt her from personal attendance at the trial in the case, on the ground that as a woman accused from Bangalore she had to experience a lot of difficulty and hardship in attending the trial Court on all the dates of hearing. That application has been rejected by the learned Magistrate by his order dated 19-10-2000 on the ground that Non Bailable Warrant had to be issued against her to secure her attendance on the previous dates of hearing. Aggrieved by that order, she has approached this Court for redressal of her grievance.
3. As submitted by her learned counsel, the identity of the petitioner in the said C.C. No. 606/98 is not in dispute. This submission would remain as a part of the record thereof.
4. Since the exercise of power under Section 205, Cr.P.C. is a matter entirely between the learned trial Magistrate and the accused, and no prejudice would be caused to the respondent-complainant by reason of presence or absence of petitioner at the trial in the said case, notice to the latter in this revision is dispensed with.
5. The offence under Section 138 of the Act is triable as a summons case. Section 273, Cr.P.C. relates to record of evidence by the trial Court during the trial of a Criminal case, or other proceeding. It states :
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.
(Underlining supplied)
6. Section 313, Cr.P.C. provides for examination of accused by the trial Court in any enquiry or trial. The proviso to Sub-clause (b) of Section 313(1) Cr.P.C. stipulates that:
... in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).
(Underlining supplied) The Supreme Court in Basavaraj R. Patil v. State of Karnataka, (2000 AIR SCW 3692 : (2000 Cri LJ 4604)) shedding the light on the sweep of this proviso to Section 313(1)(b) has stated at page 4610 of Cri LJ :
...is it necessary that in all cases, the accused must answer, by personally remaining present, in Court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the Court not alleviate the difficulties. If the Court: holds the view that the situation in which he (the accused) made such a plea is genuine, should the Court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in Court.... (Para 21).
(Underlined bracketed portion supplied) Further at Para 22 of its judgment, the Supreme Court proceeds to observe :
The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is "Summons Cases.
At Para 24, the Supreme Court proceeds further to elaborate at page 4611 of Cri LJ :
24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall" in Clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g. if the accused satisfies the Court that he is unable to reach the venue of the Court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How this could be achieved?
The above question posed to itself is answered by the Supreme Court in Paras 25 and 26 of its Judgment thus :
25. If the accused (who is already exempted from personally appearing in the Court) makes an application to the Court praying that he may be allowed to answer the questions without making his physical presence in Court on account of justifying exigency the Court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters : (a) A narration of facts to satisfy the Court of his real difficulties to be physically present in Court for giving such answers, (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning, (c) An undertaking that he would not raise any grievance on that score at any stage of the case.
26. If the Court, is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the Court to supply the questionnaire to his advocate (containing the questions which the Court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers). If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the Court, he shall forfeit his right to seek personal exemption from Court during such questioning.
7. Section 317, Cr.P.C. is a general provision which provides for conducting enquiries and trial in the absence of accused in the circumstances stated therein. It states, inter alia, that: "at any stage of enquiry or trial in this Court 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 interest of justice, the Judge or Magistrate may, if the accused is represented by a pleader would dispense with his attendance and proceed with such an enquiry or trial in his absence, and, may at any subsequent stage of the proceeding, direct the personal attendance of the accused.
8. Sub-section (6) of Section 353, Cr.P.C. further envisages that: "When the personal attendance of the accused is dispensed with during the trial, the Criminal Court trying the accused can pronounce the judgment of acquittal or the judgment of conviction followed by the sentence of fine only, even in the absence of such accused." Section 205, Cr.P.C. also relates to the power of the Magistrate to dispense with the personal attendance on an accused, which reads :
205. Magistrate may dispense with personal attendance of accused.- .
(1) Whenever a Magistrate issues a summon, 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.
9. Dealing with the necessity of seeking attendance of the woman accused in a Criminal trial by the learned Magistrate, the High Court of Gauhati in Mt. Marjina Begum and Ors. v. Matakhal Ali reported in 1978 Cri LJ NOC 292 had an occasion to observe :
Women should not be asked to appear in person in Court unless there are some strong reasons for insisting upon their personal presence in Court. Discretion in their favour ought to be liberally exercised in view of the social condition that exists today.
10(a). The relevant provisions of that aw quoted above and the legal propositions enunciated by the Hon'ble Supreme Court in Basavaraj R. Patil's case, (supra), and of the High Court of Gauhati in Mt. Marjina Begum, (supra), make it abundantly clear that the Criminal Courts should not be unduly strict and harsh in the matter of seuring personal attendance of the women accused in a Criminal proceeding against them and that they should normally adopt a liberal and humane approach in the matter of granting them exemption from personal attendance when so requested and when they are duly represented by an advocate. This duty on the part of the learned trial Judges gains all the more importance considering the social milieu and ethos peculiar to the Indian society. While dealing with an application of any woman accused for her exemption from personal attendance in a criminal trial against her, the Criminal Courts must keep themselves informed of the religious and cultural susceptibilities, gender sensibility-such as sense of shame, modesty and stigma with which a woman accused of a crime would usually be over taken during her trial in a Criminal Court; and the social and religious customs and practices of the particular community to which a woman accused belongs - placing constraints on her public appearance viz., purdah nashin lady. In this regard, the following dictum of Hon'ble Supreme Court in Punjab National Bank v. Surendra Prasad Sinha, administering a note of caution may usefully be recalled at page 2919 of Cri LJ :
It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. (vide Para 5).
10(b). Therefore, in the aforementioned legal and moral perspective the salutary principle which emerges is that the grant of exemption from personal appearance to a woman accused on bail in a criminal proceeding is a rule and its refusal is an exception.
11. The facts that petitioner is a widow who is a permanent resident of Bangalore City and that the Court of the learned J.M.F.C. at Hiriyur, where she is being tried for C.C. No. 606/98, is at a distance of about 200 Kms. from Bangalore, are not in dispute. Keeping in view the aforequoted relevant provisions of Cr.P.C, and the legal propositions enunciated by the Supreme Court in the case of Basavaraj R. Patil and the High Court of Gauhati in the case of Mr. Marjina Begum, (supra), I find that the exercise of discretion by the learned Magistrate in passing the impugned order, in the facts and circumstances, has been arbitrary and unreasonable. Had the Court below exercised its discretion in a judicious and reasonable manner, it could not have failed to allow the application of the petitioner-accused. Therefore, his impugned order is vitiated for arbitrary exercise of discretionary power under Section 205 Cr.P.C.
12. For the reasons aforesaid, the petition is allowed. The application under Section 205, Cr.P.C. filed by the petitioner in the Court below is allowed. The petitioner is granted exemption from personal appearance during her trial in C.C. No. 606/98 pending on the file of the Court below, unless in the opinion of the learned Magistrate her personal attendance is essential at any particular stage of the trial proceeding to avoid of failure of justice.