Haranahalli Ramaswamy vs K. Shama Rao (Dead) and Another

Arali Nagaraj, J.—The only accused in C.C. No. 16174 of 2002 on the file of the learned 8th Additional Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as the "Trial Court") has filed the present petition u/s 482 of the Criminal Procedure Code, 1973 seeking quashing of the order dated 30-6-2005 passed in the said case insofar as it relates to the direction issued to the petitioner-accused by the Trial Court to appear before it on 30th August, 2005. The petitioner has sought for direction to the Trial Court to pass order on the application of the 2nd respondent herein filed in the said case u/s 256 of the Cr.P.C. The petitioner has further sought for exemption from his personal attendance before the Trial Court pending his trial in the said case.

I have heard the arguments of Sri G. Krishna Murthy, the learned Counsel for the petitioner-accused and Sri Raghavendra K., the learned Counsel for the respondent 2. The first respondent namely Sri K. Shama Rao was complainant in the said case and he is no more now. I have perused the impugned order and other material on record.

Stated in brief, the facts leading to the present petition are as under:

(a) On the basis of the complaint filed by the deceased-first respondent herein, the said criminal case came to be registered against the petitioner-accused for the offences punishable under Sections 500, 501 and 502of the Indian Penal Code, 1860. During the pendency of the proceedings in the said case before the Trial Court, the first respondent i.e., the complainant died. Therefore, the 2nd respondent being his daughter filed an application u/s 256 of the Cr.P.C.

(b) As on 30th June, 2006, on which date the impugned order came to be passed, the said case was posted for hearing the said application. On that date of hearing, the petitioner-accused remained absent and therefore his Counsel filed an application seeking dispensing with the personal attendance of the accused. Though the Trial Court was of the view that no grounds existed for allowing the said application, yet he allowed the same and directed the accused to be present on the adjourned date of hearing i.e., 30th August, 2005. It is this order the correctness of which is challenged in this petition.

Section 317(1) of the Cr.P.C. provides that "at any stage of an inquiry or trial, 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 and if the accused is represented by a Pleader, he may dispense with the personal attendance of the accused and proceed with such inquiry or trial in the absence of the accused". It further provides that at any subsequent stage of the proceedings, the ''Magistrate may direct the personal attendance of the accused''.

From the above provision, it is quite clear that allowing the application seeking dispensing with the personal attendance of the accused is within the discretion of the Magistrate and he is empowered u/s 317(1) of the Cr.P.C. to direct the accused to be preset before the Court at any subsequent stage of the trial or inquiry. This being so, I do not find any illegality committed by the Trial Court in passing the impugned order dated 30-6-2005.

However, while dealing with the application for dispensing with the personal attendance of the accused in any criminal case, the Magistrate or the Judge of Criminal Court shall have to consider whether any useful purpose would be served in insisting upon the personal attendance of the accused or whether progress of the trial of the case is likely to be hampered by reason of absence of the accused before the Court and, if it is found that the personal attendance of the accused is not an absolute necessity, the Magistrate or the Judge shall have liberal approach in granting exemption to the accused from being personally present in the Court. Therefore, the accused in a criminal case shall have every right to seek dispensing with his personal attendance by filing an application u/s 317 of the Cr.P.C. and, if the grounds urged in it are acceptable, the learned Magistrate or the Judge, may allow the said application even if the accused is directed to be personally present on that date of hearing. This being so, the prayer of petitioner herein for his permanent exemption in the said case during his trial as made in this petition cannot be granted. The petitioner herein would be at liberty to file petition u/s 317 of the Cr.P.C. on valid and legally acceptable ground, seeking dispensing with his personal attendance and in the event of such application being filed, it shall be the duty of the Trial Court to consider and dispose of the same in compliance with the provisions of Section 317 of the Cr.P.C. and in the light of the above observations in this order.

The other relief sought for in the present petition is that a direction be issued to the Trial Court to pass an order on the application of the 2nd respondent filed u/s 256 of the Cr.P.C. in the said case. The learned Counsel for the petitioner-accused has drawn my attention to the order of this Court dated 2-6-2004 passed in Cr. P. No. 3740 of 2003. At para 4 of the said order, this Court has observed that ''when the legal representative of the deceased complainant has filed an application u/s 256 of the Cr.P.C., the learned Judge has to decide the same on merits and then proceed with the matter''. This being so, the direction which is sought for in this petition need not be issued. It is an admitted fact that the said application is still pending before the Trial Court. Therefore, the Trial Court shall have to dispose of the same on merits in accordance with law.

The present petition stands disposed of in the above terms.