Manager, V.G. Panneerdas and Company, Madras and 4 others vs Nataraja Thevar

Padmini Jesudurai, J.—The petitioners, to whom summons under S 205, Crl.P.C., have been issued by the Chief Judicial Magistrate, Pudukkottai, on a complaint instituted by the respondent herein, for offences under Ss.420, 409 and 500, I.P.C., and whose prayer under S.205(1), Crl.P.C., for permission to be represented by a Pleader has been turned down, invoke the inherent powers of this Court for a direction to the court below for the above relief.

The Respondent filed a private complaint against the Petitioners for offences under Ss.420, 409 and 500, I.P.C. The complaint was taken on file by the court below for the above offences and, by registered post, summons were sent to the Petitioners for their appearance on 28.4.1987. On that day, the petitioner''s counsel appeared in court and tiled an application under S.205(1), Crl.P.C., for dispensing with the appearance of the petitioners and permitting them to be represented through their counsel, on the ground that the petitioners were residing in Madras and were doing extensive business in Madras and in other places, that the 1st petitioner was the Manager of the Company and the others were the partners, that all of them would be travelling to various places in India and often out of India also, in connection with their business and that therefore they should be permitted to appear through their counsel.

The Court below turned down their request on the ground that it had been the practice of that court to insist on the personal appearance of every accused for the first hearing and that it was only proper that every accused should personally appear in court for the first hearing, which alone would enable the court to find out the truth about the accused. Learned Magistrate has also stated that the reasons put forward by the petitioners, could not be accepted, as justifying an order dispensing with their personal appearance. The petition, therefore, was dismissed, and non-bailable warrants were issued against the Petitioners. Hence the present petition.

The short point that arises for consideration is whether the order of the Trial Court insisting upon the appearance of the accused for the first hearing could be legally sustained.

S.205, Crl.P.C., reads as follows:--

(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)....

The above section makes it clear that even when initially the trial court issues a summon, it is open to the Magistrate not to insist on the personal attendance of the accused and permit him to appear by his pleader.

It is the baste principle of criminal jurisprudence that nothing shall take place behind the back of the accused. If a presumption of innocence is raised in his favour, it is the primary duty of the court to take all steps to ensure that a fair trial is given to him. It is on the basis of this principle that the accused is required to be present during trial. Nowhere in the Criminal Procedure Code do we find that the accused has to be present at each and every hearing of the case. To require so would cause hardship to the accused and would also stand in the way of an expeditious trial. S.317, Crl.P.C., provides for a trial being held in the absence of the accused, if the accused is represented by a Pleader and the court is satisfied that the personal attendance of the accused is not necessary. No doubt, the court has to record its reasons for the same. It is under this benovolent provision that applications made by the accused through their counsel, on occasions when due to circumstances beyond their control they are not able to attend court, that the court dispensing with the personal attendance of the accused proceeds with the trial or enquiry, without being compelled to adjourn the proceedings due to the absence of the accused. While S.317, Crl.P.C., covers the stage after the commencement of enquiries or trial, S.205, Crl.P.C., deals with the commencement of proceedings before the Magistrate, thereby indicating that for proper reasons the presence of the accused could be dispensed with right from the initial stage. When the Code itself specially provides under S.205(l), Crl.P.C. that even for the first appearance the Court for reasons could dispense with the personal attendance of the accused and permit him to appear by pleader, the above provision should not be rendered nugatory by the trial court adopting a practice, as in this case, and insist on the personal attendance of the accused for the first hearing whatever the the circumstances may be. Such insistence is against the spirit and the letter of the law.

No doubt, permitting the accused to appear through a Pleader under S.208, Crl.P.C., is within the discretion of the trial court. That discretion has to be judiciously exercised. When insistence on the presence of the accused is primarily required in the interest of the court, the Court could liberally apply S.205, Crl.P.C., when the accused themselves have come forward with an application that they are prepared to allow the court proceedings to proceed within their absence while they are represented through their pleader.

The introduction of S.206, Crl.P.C., in the amended 1973 Code, thereby enabling the Magistrate in certain petty offences calling upon the accused while issuing summons to appear either in person or through pleader and asking him if he desires to plead guilty and if he does so, specifying the fine amount in the summons itself, indicates the modern trend of the law relating to personal appearance of the Accused. While, therefore, acting under S.205, Crl.P.C., courts have to keep in mind that the Code nowhere requires that the accused must be present for each and every hearing and whenever the personal appearance of the accused is obligatory at different stages they have been so indicated in the Code itself and that for the other hearings liberal use of Ss.205 and 317, Crl.P.C., as the case may be, would promote the interest of justice and contribute to an expeditious disposal of the case. In cases where the accused are not likely to abscond and the question of identifying the accused by the prosecution witnesses may not arise or where the accused are woman sick and old labourers earning daily wages or even Industrialists, whose presence would even periodically take them abroad, courts should judiciously use their discretion under S.205, Crl.P.C., in favour of the accused. It is needless to say that in cases involving moral turpitude or grievous or heinous crimes or where the presence of the accused is necessary to enable the prosecution witnesses to identify them, or the accused is likely to abscond, the discretion should be exercised against the accused.

The instant case arises out of a private complaint. Learned Counsel for the petitioners contends that a civil suit, on the same set of facts, had ended in favour of the petitioners and the private complaint has been filed only to harass them. It is not denied that the petitioners reside in Madras which is 275 miles from the venue of trial. They are industrialists having branches all over the country. While so, the judicious exercise of the discretion under S.205, Crl.P.C., would require dispensing with the personal attendance of the petitioners and permitting them to appear through their counsel even at the first hearing. That discretion not having been exercised in a judicious manner, the order passed by the court below hat to be set aside.

In the result, the petition is allowed and the order of the Court below is set aside. The learned Magistrate shall permit the petitioners to appear through their pleader even for the first hearing.