IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/08/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL ORIGINAL PETITION No.7670 OF 2003
AND
CRL.M.P.Nos.2702 & 5251 OF 2003.
T.E.Vallabhan ... Petitioner
-Vs-
Mrs.Godha Pushpam ... Respondent
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure for the relief as stated therein.
!For petitioner : Mr.Niranjan
^For respondent : Mr.K.M.Srirangan
:O R D E R
The petitioner, who is the accused in C.C.No.4247 of 2002 on
the file of the Court of Chief Metropolitan Magistrate, Chennai has filed the
above criminal original petition praying to set aside the order dated 8.1.2003
made in Crl.M.P.No.2716 of 2002 in the above C.C. and to allow him to be
represented by his counsel under Section 205 Cr.P.C. and permit the counsel
to receive copies on his behalf.
2. The petitioner would submit that he is arrayed as the
accused in the said case for an alleged offence punishable under Section 498-A
IPC and that he is presently doing his advanced studies in Medicine in the
United States of America after completing his MBBS at Hyderabad in India and
the case has been registered on the complaint lodged by his wife with the All
Women Police Station; that if the petitioner were to appear before the Court,
he has to discontinue his higher studies in medicine and it is very difficult
to get leave since the petitioner does not have any other source of income and
has to study on the grant given by the University; that on the
mis-representation of a Lawyer engaged by his father-in-law, earlier he
addressed a letter to the Court below thereby undertaking to ap pear before
the Court during March, 2003 and the Chief Metropolitan Magistrate, vide order
dated 8.1.2003 in Crl.M.P.No.2716 of 2003 had dismissed the petition filed
under Section 205 Cr.P.C.
3. During arguments, the learned counsel appearing on behalf
of the petitioner and the respondent as well would only stick to the pleadings
with no additional materials placed before this Court. On the part of the
learned counsel for the petitioner, he would argue to the effect that it is
purely a matter of discretion of the Court under Section 205 Cr.P.C., which
has to be exercised in the given facts and circumstances of the case in hand
and would pray to consider the inevitable circumstance of the petitioner being
not in a position to appear before the Court since he is abroad. On the part
of the learned counsel for the respondent, laying emphasis not only on the
reasons assigned by the lower Court for dismissing the application filed by
the petitioner under Section 205 Cr.P.C. but also would insist on Section 273
Cr.P.C. wherein emphasis is laid for all the evidence to be taken in the
course of the trial or other proceeding in the presence of the accused or when
his personal attendance is dispensed with, in the presence of his pleader and
the learned counsel for the respondent would pray to dismiss the above
criminal original petition.
4. In consideration of the facts pleaded, having regard to
the material placed on record and upon hearing the learned counsel for both,
what this Court is given to understand is that the petitioner, who is abroad
in the USA, alleged to have been admitted in a University for Post Graduate
studies on scholarship, has filed the petition before the trial Court in the
case registered against him on the complaint lodged by his wife/the respondent
herein for an offence punishable under Section 498-A IPC under Section 205
Cr.P.C. seeking to dispense with his personal attendance and to permit him to
appear by his pleader not only on all dates of hearing but also to receive
copies of documents on his behalf thereby meaning that he will not at all be
attending any hearing during the entire proceeding of the case particularly
during trial. In these circumstances, the only question that is to be decided
is `whether the accused in a case of such nature as one in hand, whatever be
the reason, be permitted to appear by his pleader on all hearings and if so,
what would be the consequence of the trial held in such a manner?’
5. On a perusal of the records, it comes to be seen that
already the petitioner has disowned the commitments of his earlier counsel
stating that without his concurrence, the Advocate appointed by his
father-in-law, has committed something thus disapproving and disowning all
such acts done by the learned Advocate on his behalf and at this stage, under
the cloak of having engaged yet another counsel, he has come forward to pray
for the relief under Section 205 Cr.P.C.
6. It is submitted on the part of the petitioner that he is
put under such pressure that he may not be able to be present at any stage of
the trial and even to receive copies of documents and he would plead to permit
his Lawyer to do the same on his behalf thereby meaning that even at the
crucial stages he would not appear before the Court. If the Lawyer is
permitted to receive the copies, for the preliminary questioning before trial
and for the final questioning under Section 313 Cr.P.C. after trial, needless
to mention at the time of delivery of the judgment and in such circumstances,
it can never be imagined a Lawyer to take the place of the accused, needless
to mention as to who will be taken into custody if the case ends in
conviction.
7. Normally, while permitting such applications, under
certain exigencies, the Courts would order giving liberty to the trial Court
to summon the accused on such crucial occasions for questioning, delivery of
judgment etc., which could be done only in the presence of the accused and
therefore, there cannot be a blanket order passed by the Court completely
dispensing with the personal appearance of the accused on all dates of hearing
and therefore passing such an order is ruled out, particularly when the
accused does not come forward to undertake that at crucial stages of the case
mentioned supra, when the personal attendance of the accused becomes
indispensable, he would appear before the Court at any cost.
8. Moreover, from the order of the lower Court, it comes to
be seen that the petitioner, through his earlier counsel, has promised to
appear before the Court in March, 2003 and so far as this undertaking is
concerned, the petitioner, without keeping-up the same and with scant regard
to the privilege extended, has now come forward to attribute false reasons,
accusing the earlier counsel having misrepresented, thus throwing the
assurance made before the Court to the winds and there is no guarantee that
the petitioner would not disown the present counsel also in the same manner
and therefore at any stretch of imagination, the luxurious prayer sought for
on the part of the petitioner cannot be complied with and it is only up to the
petitioner to arrange things in such a manner so as to be present before the
trial Court if and when he is required to appear to complete the trial in the
manner required by law.
9. In support of his contentions, the learned counsel
appearing on behalf of the petitioner, would also press into service a
judgment of the Honourable Apex Court delivered in BHASKAR INDUSTRIES LTD.
vs. BHIWANI DENIM & APPARELS LTD. AND OTHERS reported in (2001) 7 SCC 401
wherein it is held:
“…. Presence of the accused in the court is not for marking his attendance
just for the sake of seeing him in the Court. It is to enable the court to
proceed with the trial. If the progress of the trial can be achieved even in
the absence of the accused, the court can certainly take into account the
magnitude of the sufferings which a particular accused person may have to bear
with in order to make himself present in the court in that particular case.”
“…. However, one precaution which the court should take in such a situation
is that the said benefit need be granted only to an accused who gives an
undertaking to the satisfaction of the court that he would not dispute his
identity as the particular accused in the case, and that a counsel on his
behalf would be present in court and that he has no objection in taking
evidence in his absence. This precaution is necessary for the further
progress of the proceedings including examination of the witnesses.”
10. Admitting the proposition as held by the Honourable Apex
Court, it needs to be explained that so far as the case in hand is concerned,
it is glaringly brought to the notice of the Court that already the petitioner
has once disowned his undertaking to appear before the lower Court in March,
2003 stating that the earlier counsel has misrepresented thus forcing him to
give such an undertaking. While such being the condition prevalent in the
case in hand, taking into consideration that there is no guarantee that the
petitioner would not again come forward to disown the commitments made through
his counsel, this Court is of the view that no such risk could be taken in
permitting the petitioner with a blanket order dispensing with his personal
attendance on all hearings lock-stock and barrel as it comes to be prayed for
and hence the petitioner does not become entitled to the benefit of the
judgment of the Honourable Apex Court.
11. In the above circumstances, this Court is not able to see
any error apparent or legal infirmity or inconsistency having crept into the
order of the trial Court in dismissing the petition filed on behalf of the
petitioner under Section 205 Cr.P.C. as per its order dated 8.1.2003 made in
Crl.M.P.No.2716 of 2002 and therefore this Court does not see any valid or
tangible reason to interfere with the well considered and merited order passed
by the Court of Chief Metropolitan Magistrate, Chennai and hence the following
order:
In result,
(i)the above criminal original petition is devoid of merits and the same is
dismissed as such.
(ii)The order dated 8.1.2003 made in Crl.M.P.No.2716 of 2002 in C.C. No.4247
of 2002 by the Court of Chief Metropolitan Magistrate, Chennai, is hereby
confirmed.
Consequently, Crl.M.P.No.2702 of 2003 is dismissed and
Crl.M.P.No.5251 of 2003 is closed.
Index: Yes
Internet: yes
Rao
To
The Chief Metropolitan Magistrate,
Egmore, Chennai-8.
Rao