Rohit S. Ved vs State of Kerala

R. Basant, J.—Can a person facing allegations in a prosecution u/s 138 of the Negotiable Instruments Act and against whom a warrant of arrest-bailable or non-bailable, has been issued by a Magistrate to procure his presence appear before the Magistrate through Counsel and claim exemption u/s 205 Code of Criminal Procedure and plead guilty? Should his personal presence be insisted? This is the short question that is raised by the Petitioner in this Crl. M.C.

The Petitioner faces indictment in prosecutions u/s 138 of the N.I. Act. The prosecutions are pending before the learned Chief Judicial Magistrate, Thrissur and the learned Judicial Magistrates of First Class, Thrissur and Kunnamkulam. The allegations relate to cheques issued by the Petitioner for the discharge of liability under the E.S.I. Act. and the Employees'' Provident Fund Act. In some of the cases, the Petitioner has entered appearance. In some others, the Petitioner has not entered appearance. In some others, warrants of arrest have been issued against the Petitioner. He has already discharged the liability under the cheques. The Petitioner wants to appear before such Courts through Counsel and plead guilty in all the cases. The Petitioner apprehends that as warrants are pending against him in some of these cases, he may not be permitted to plead guilty through Counsel. It is hence prayed that appropriate directions may be issued to enable him to so appear before the learned Magistrates through Counsel and plead guilty.

The learned Counsel for the Petitioner submits that the Petitioner is obliged to approach this Court as the question does not appear to have been decided finally and conclusively in Jain Babu v. Joseph ILR 2008 Ker 88. As a consequence, Magistrates are insisting even when the accused want to plead guilty or take part in the proceedings through Counsel that such applications cannot be entertained without the personal presence of the accused.

I find no basis for this apprehension. In Jain Babus'' case in para-16 I have quoted the decision of Mr. Justice K.V. Sankaranaryanan in Raman Nair v. State of Kerala [1999 (3) KLT 714]. In that, the learned judge has referred with approval to some decisions "which go to the extent that warrants issued can be withdrawn and exemption granted u/s 205 Code of Criminal Procedure on application of the accused".

The question demands and warrants a look at the fundamentals. The summons as well as warrants whether bailable or not are only processes to secure the presence of an indictee before Court. Be it not forgotten that both the summons and warrants are only issued in the attempt of the Court to secure the presence of the summonee/warrantee. Where the personal presence of such summonee/warantee is not necessary for the progress of the case and he can be exempted from personal appearance before Court, there can be no reason to ritualistically insist on the presence of the summonee/warantee to facilitate consideration of the application for exemption. If personal presence is not required and can be exempted u/s 205 Code of Criminal Procedure, the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant. All summons cases, and all other cases where summons is issued at the first instance u/s 204 Code of Criminal Procedure shall fall within the sweep of Section 205 Code of Criminal Procedure In such a case where the Court is satisfied that there is reason to grant exemption u/s 205 Code of Criminal Procedure, the fact that a warrant has been issued later is no reason to insist on the personal presence of the indictee to consider an application for exemption-whether to plead guilty or not guilty.

It is for the Petitioner to appear before the Magistrate concerned to claim exemption u/s 205 Code of Criminal Procedure and choose to make appropriate plea. When he makes an application u/s 205 Code of Criminal Procedure, the Magistrate concerned will certainly be not justified in not taking up the application for exemption for consideration merely on the ground that a warrant of arrest has also been issued. Where the plea is one of guilty and the learned Magistrate is satisfied that the Counsel has been authorised to make that plea of guilty, I can find no earthly-reason which should persuade a Magistrate to insist on the personal presence of such indictee to consider the application for exemption.

This Crl. M.C. is allowed to the above extent. The Petitioner can appear through his Counsel notwithstanding the fact that warrants of arrest are pending against him. He can apply for exemption u/s 205 Code of Criminal Procedure to make his plea. The learned Magistrate must consider the prayer. To consider that prayer, the learned Magistrate need not insist on personal presence.

*A reproduction from ILR (Kerala Series).