IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 15"' DAY or OCTOBER, 2009. BEFORE THE HON'BLE MR. JUSTICE A.N. v_E,N.u;;oPALA' CRIMINAL PeT:1'_Igi\i=..4Ai<_;p-.r727'3,_0'_A_§J_;o"_9_'T' ' BETWEEN: Sri.Chandrashekar Rudrappa Me_nsin_ka.i Age:S3 years, Occ: Advocate Mangaiwar Peth, Dharwad_..." _ A n."..._PETITIONER (By Sri:A.A.Pathan., Adv) j; ' AND: Manipal vFin'ancVéi,Cor'f:oratiori Ltd._,'"" Manipai7,House, T - Manipai 11.9 Represented by its=Mana.ging' Director T.Na'r.ayanVP«aiC~~._ RESPONDENT " v .( R2 deieted A vide Court order dated 02.07.2009) Sri e.jo._yAeg de & Assts., Ad vs) is filed under Section 482 of Cr.P.C. _ 0 ',oraying..tog_set aside the order dated 19.06.2008 passed by JMFCWI Court Hubii in CC No.1725/20O4. 0' Cri.P is coming on for Admission this day, the ___*7Co'Lgrt made the following: O R D E R
The petitioner filed a private complaint against the
respondent and three others, alleging commis,sion7._of
offences punishable under Sections 143,
465, 467, 468, 469, 47: and 474 read with lseé:jtien–l»I14=9
Cr.P.C. The sworn statement of the’,compl.ai’na’nt:~-et__wa;s6
recorded. The cognizance w’a-s__ taken_ and su’rn,rno_ns_,’§wals
issued to the respondent and other,’ accuseidzpertsons. A
case was registered in NctV,132.S;’~2_0.li4,on the file of the
JMFC at l-Eub|i.,_ on….,.the. lep§:;1itattier$’:,,, rnade by the
accused/respo.nder’it_, bail by imposing
the coAnd~.itionVsu.~.’j-.,1:”Theo:”respondent/accused filed the
app|icatio”n,__’un,de’r_”Sec:tio’nsV 295 and 317(1) of Cr.P.C.
_ see,k.i,:ngpern’1’ission ‘of the learned Magistrate for
.d:ispensationA”from personal appearance before the Court.
applichation was contested by the
conn’plai’–nantfpetitioner. Considering the submissions made
it’flv,:0n~ee.pehalf of the complainant and the applicant/accused,
.’ application was allowed and the respondent who is the
“Managing Director of Manipal Finance Corporation Limited,
‘ t»
K
has been exempted from the personal appearance before
the Court during the course of trial of the said case,
subject to the conditions indicated in the orde_r.._:j.ji”h_is
petition is directed against the said order.
2. Sri.A.A. Patha n, learned; Acl_\(oca_te”ap:pea’r’inVg.,Von_ K ”
behalf of the petitioner/complainant Iconjteinded
respondent/accused is deliberately”i’a\roidinlg:”{g.._.a.P§eair
before the Trial Court and the___a’pp_|_ica_tion.”filed” before the
Triai Court is untenable’:T.Afliccogrdifngjftfoihim, the cause
stated in the applicationisv»oijIy’–a_”;nal§e b’ev!”ieve one, which
could a:cce’pted’._WbyV’Vthe learned Trial Judge
and theyiffrnpugnedji.go’rdVeir:’passed. To show that the
respoVndentf”~ha’s._ob|iqueI’y motivate, learned Counsel
nthat’}”t’iri’e’ respondent and others had filed
in this Court seeking quashing of the
pro:;’eiedings3.’i..V_ is contended that after the dismissal of the
petition on 18.08.2005, the aforesaid appiication for
“«fipeVrn;i’anent exemption was filed. Learned Counsel by
referring to the decisions of the Apex Court in the case of
L.
.2
Lily Begum Vs Joy Chandra Nagbanshi, reported in
1994 Supreme court Cases (CH) 303, contenc!«e’d~e,’ftgh:a’t.,’
the dispensation/exemption granted is illegal–jand.:hen’ce’,;’*sA”
the impugned order is liable to be setrasidei
3. Per contra, Learned Courisel a»p7peari’ng:’; on
behalf of the respondent, the
impugned order, cont:e’nVded’_VAV.’th’at’:«..,_t~hVé–..TrialVxCourt has
correctly exercised it and since
the order passecl.c,,1§\/’Viitheh’ifriai has been
impugned “passed in exercise of
the ‘court, this Court should
not intelrfere Learned Counsel submitted
that, thee conditions irinposed in the impugned order have
vv,,,pee’n.€’cti’mpii.ed wivtlhmdby the respondent, by filing an
s–aFl’ida’vit,:”i.n.v”th’eV:_5.Triai Court. Learned Counsel submitted
that.,,__Vth;e-respondent will act in terms of the conditions
V’~.__V”‘irnp0sed,__A«by the Trial Court in the impugned order and
this Court may decline to entertain the petition.
k
4. Keeping in view the rival contentions, the point
for consideration is:
“Whether the impugned order is illegal”?
5. The Trial Court in the impugned
noticed the material facts. Keeping in vievv,__th’e_factsn_and««f
circumstances of the case and also the uri«de’¥rta~l__<ercise" i3f_t"ne*
powers conferred upon him 'under Section' fa_nd.,.3J_:37(V1)
Of Cr.P.C.
6. In the casefuoff Ltd.,
Vs M/s and Others
reported the scope and ambit of
._ei_(‘igencies”«w.h_es~1 the Court can proceed with
V the triai proceedings in a criminal case after
d_ispens’mg with the personal attendance of an
._ acfcusefci-.,~’ We are not concerned with one of
those: fexigencies i.e. when the accused
._ p_ei’sis’tentiy disturbs the proceedings. Here we
,. need consider only the other exigency. If a
.y _ Court is satisfied that in the interest of justice
‘ the personal attendance of an accused before
* it need not be insisted on, then the Court has
the power to dispense with the attendance of
that accused. in this contextk: reference to
/1.’
Section 273 of the Code is useful. It says that
” except as otherwise expressly provided, all_…_
evidence taken in the course of the trial or_
other proceedings shall be taken in
presence of the accused or, when~…_’Hi5g___’- 3
personal attendance is dispensed with,~~jin th_e'<T
presence of his pleader. " If a Court_fe.e_ls.th~at ._
insisting on the personal -a'ttendan_ceHof.yan._j_
accused in a particular case would t:=le"to'o_'h-ars.h~.._
on account of variety of r°eason"s, can't–,the"
Court afford relief to ssuch an"'accusedg*-inthe I
matter of facing the prose'cution "proceVedin'gs"?"
14. The .norma-ll”— ..ru.le*-._ is t’ha.t ../izhe
evidence shall be_tai<e7_1 in.t'h«e_ p_r'e.sence of the
accused. However', everl theavabgsence of the
accused such eviderwe can be'-vta'l:en~" but then
his cou~n's'e.lVggyZ'–mu¢st p're'se_nt____in' the Court,
provid-ed g hef_h.a s been granted exemption from
attending°g.t'he~~– .Coujrt."»..V_yiTh-e -'concern of the
cvriyminal €ourt_,_"wsh~lould_ primarily be the
:adrni'nlls;i':ratio}n' ofacrirninai'Vjustice. For that
purpose 'proceed__ing»s of the Court in the
case «shouldvregiisteir.progress. Presence of the
accused in ti1.e..Court is not for marking his
_ atten"dance_j–.ust_ for the sake of seeing him in
the Cou'rt..__V It is to enable the Court to proceed
w-ith~vl.the triavi*–.~*–~'If the progress of the trial can
be. achieved even in the absence of the
a'ccus'edV"the Court can certainly take into
" acco,untv"t'he magnitude of the sufferings which
a _pari:Ecular accused person may have to bear
w'ith'~l"n order to make himself present in the
*~Co:.urt in that particular case.
15. These are days when prosecutions
for the offence under Section 138 are galloping
up in criminal Courts. Due to the increase of
inter–State transactions through the facilities of
is
/if
the banks it is not uncommon that when
prosecutions are instituted in one State the.–.__
accused might belong to a different_State,»._*._V
sometimes a far distant State. Not very rarelgy’-ff,’ .,
such accused would be ladies also.”
prosecution under Section 138 of the N1″ ., ct
the trial should be that of summ_-~n~3….’:Case..V 4. _
When a magistrate feels Zthat«i.nsi.ste.ncefl_of-[L ‘
personal attendance of the ,ac.c7usedW_i’n
summons case, in a particular si–t_uation’,.,,wouli.d”
inflict enormous har.dsh__ip and cost'”to.__a
particular accused, it iso_p’en to the ‘mag_,istr,ate’
to consider how he can reIi’eve_such”an, accused
of the great V .~hardshi’p’s-, ,_:’-without ‘causing
prejudice to the p–r_o}3ecutic;;n. p’roc.e”ed_ings.
16. *Sectio’n”*2.S1 ‘- the .,Co’mmencing
provision «Cha_pterfXX«. ofi_”th_e_TCode which
deals w4ith;jH__~_’trivajl«_ of sufmrruons cases by
magii3tra.tes.’ It enj.oE,ns’«o,ii tl–1e’V’Court to ask the
accuvsedp”wil.ether_”h,e*p*l.gaaVdsV,,%guilty when the ”
a’ccused;}_app’ears”,or is ‘brought before the
Mag-istrateT’*;’V._, _ ‘i”»he~–._ ‘appearance envisaged
therein can ‘eijth_er..be..b.y personal attendance of
theaccused o”r,thro’ugh his advocate. This can
be un’de_rsto_od f’r.orn”Section 205(1) of the Code
which says, that ” whenever a magistrate
issuesga surnrnons, he may, if he sees reason
so. to-..Vdo, dispense with the personal
¥.atter.-dannce of the accused and permit him to
” appea__r’by’ his pleader “.
Thus, in appropriate cases the
‘magistrate can allow an accused to make even
the first appearance through a counsel. The
magistrate is empowered to record the plea of
‘ the accused even when his counsel makes such
plea on behalf of the accused in a case where
the personal appearance of the accused is
/(_”L
dispensed with. Section 31.7 of the Code has
to be viewed in the above perspective as it
empowers the Court to dispense with the
personal attendance of the accuseci (provicied_…_
he is represented by a counsel in that case)’,_
even for proceeding with the further steps-«_’i”n–»_§”‘~«.V
the case. However, on a precaution which”-thje..___i’ 5 _.__
Court should take in such a situation is that the’
said benefit need be granted oni_y.__to.V an” _
accused who gives an undert.al<inIg to"r-I,the'._}_
satisfaction of the Court ti1atd_lngej.w.oulyd'
dispute his identity as the pa"rtic'ula'r accused in "
the case, and that a_rr:ouns'el_ in his.v'3'::ehalf
would be present in Court and that h_as._"no~
objection in taking evidence in his aaibsence.
This precaution is necessaw for the-fiJrt.l'ier
progress of 'the._ .proce"eciinvVgs.d including
examination of the' wiaiinessegi. ~
181 "dues-iii'an"–.c.oui';l "legitimately be
asked rn"ig_ht "ha_ppVe'in if the counsel
e~'ngaVg'ed;}_by1'j tbe\_accus_ed" (whose personal
a?ppea~raynce*i-s 'didspenised with) does not appear
or-that t-hescoun.se'l,does not co–operate in
proceedingwitiri t–he}.case ? We may point out
that the 'iegi,slat_ur'e' has taken care for such
ddjevventualities. Section 205(2) says that the
"'m,_a.gis.trate can in his discretion direct the
perso.na«~l._ attendance of the accused at any
'"stage»."c_,he proceedings. The last limb of
"._;Sect'ion5317(1) confers a discretion on the
magistrate to direct the personal attendance of
the accused at any subsequent stage of the
proceedings. He can even resort to other
* steps for enforcing such attendance.
:9. The position, therefore, boils down
to this: It is within the powers of a magistrate
and in his judicial discretion Kdispense with
/'
g.
10
the personal appearance of an accused either
throughout or at any particular stage of such
proceedings in a summons case, if the
magistrate finds that insistence of his personal
presence would itself inflict enormous,
suffering or tribulations to him, and
comparative advantage would be less.
discretion need be exercised only in’-rarevv,.””‘-l ”
instances where due to the far di_st_a_nce\a’t,
which the accused reside.s~.or c:arriesTVo’n._’_g
business or on account of any phy’sica_l or otheig _ A
good reasons the magistratedliifeeasr ‘,t.r”‘atw
dispensing with the personal a’tten–dance»~”;:;f, the ”
accused would only ‘b.e”=..in they intei’ests_”of
justice. However, the nriagtlstrate’~who-igrants
such benefit to _.the accu_sed’*–.must “take_the
precautions enumerated a_bov_e,, “as a matter of
course. We may;.rei,te;rate”<that*»» when an
accused makes an ap_piEcatfior:"~.toc–afv magistrate
through his__duiy""a'u'dfaor'ised counsel praying
for affording' the =: l3'enefi,t'¥o»f.___..his personal
presence bé_i.r;'g "d.i':_pe.nse.d with . the magistrate
can consider all a'spectsV..lan"ol 'pass appropriate
o,rders"th'er'eon_ "o-efore proceeding further.
S.V.Muzumdar and Others Vs
V' State ffe'rti'i'i2ter Co., Ltd., and another reported
2436, considering the purport and the
inte..ntio_n'df:§'.V'making the provision in the nature of Section
of'v(S,f.P.C., the Apex Court has held that, while dealing
application in terms of Section 205 of the Code,
Court has to consider whether fly useful purpose
/
1}
would be served by requiring personal attendance of
accused or whether progress of trial is likely,y.V'to:*.i;;e
hampered on account of his absence.
8. In the decision cited by–the–learned.”CoLlnse–lTforg
the petitioner, i.e., Lily Begum (sx’upra.A),z’the”petition
been filed by the respondent thlerein in for ‘V
quashing of the criminalzproce-e’dVi..n:gs””i»ni’tiate’d’against him
for the offence punishableflu’nd’e.r.§’:’S:ec.t’io:n*;3v75, 417 and 506
of 1pc. Whiledisrnisgsing’fthejjg”p’etition;.~V’lithe High Court
directed the personal
attenda’nce” him to appear by
his advocalte, the submissions made,
that the petit~Eone.r_t.hei*_ein”was a social worker and known
‘”‘»,t_o cgililage peo’p’ie;” Since the reasoning of the High
with the personal attendance of the
resrpondevréatxiaccused) by invoking the powers under
‘z,,,..«,’x$ection~’E205 of Cr.P.C. was found to be untenable,
‘5.e3peci«ally in a case of the nature, wherein serious
…_”g””allegations are made against the respondent (accused), it
¥/
X}
x
12
was held that if such a privilege is given to an accused in a
case of the nature, people will lose their confidenceV_fi»n’_:’the
administration of justice. Hence, the Apex CoLart”s’et_’;asi.d.e _
that direction and directed the respond~er1t–:’::t_o: it
before the Trial Court on all hearin-gv datesl
9. The facts in th»qs.,.,,,’,:’i.,a.,stant v..ca:§:-._,girewtotally if
different from the one-,._which””ca,_fr:e°’tip for ‘c’ons’ideration
before the Apex Courtlilinythet-case (supra).
Hence, the decision case’-_:QfvV’Li’ViyV’v’Begum has no
application’ V”when.,.examined in the light
of th<§e'i"rati'oV..:io.fv Apex Court in the
case Ltd., (supra), it is clear
that the Iearnedt,Ma§;istr'rate while passing the impugned
order has-.not con'i'm'i'tted any illegality. The impugned
passed in exercise of the judicial
dis_cretion'r%;efsted with the Magistrate. The learned
Magistrate has not acted illegally or arbitrarily while
gyralriting the exemption, care has been taken to impose
appropriate conditions to ensure that the exempted
t
/9
accused appears before the Court, as and when there is a
need.
10. Since the impugned order having _
in exercise of the judicial discretion vest_e.d..,i_n~,t’h’e::
below and the interest of the co’mpla.i4na.nt.sghas’=a’l’so~…§§eeni’
safeguarded by imposing thee.4_approp’riate
case is made out for interfere’n’eev’ofVVthls’Court lnfiexercise
of the jurisdiction Q-‘p,C_
Consequently, the dismissed.
Needless the conditions
imposed are violated by the
responvdyen’-t/eA§{e”rnpt.ed»,’V””‘a.c’t-useid, it is open to the
complainant to rnovetne::_”_i’=4agistrate for appropriate orders
or learned”–..Mva_gAiéstrate himself may suomoto pass
»appropria«te.yor*d_ers to ensure that the accused appears in
‘p~ers-on “an{:i;»–fa’c.es the trial.
accordingly.
§§fl}§.
jlxdgé
T * ‘”*b9n/–