HELEN RUBBER INDUSTRIES v. STATE OF KERALA — 1972 DIGILAW 209 (KER)

Judgment :- 1. The refusal by the learned District Magistrate, Ernakulam, to exempt the personal attendance of the accused in some cases under the Companies Act that came before him has resulted in these revision petitions. The petitioners before me were proceeded against for non-submission of the returns and balance sheet for offences under S.159,162, 614A, 220 (1) and 220 (3) of the Companies Act. Against most of them there are two cases for two separate offences. In all these cases, except one, they indicated their intention to plead guilty and receive sentence. The proper exercise of discretion in these cases, in the interests of justice and expeditious disposal of cases, would have been to exempt personal attendance of the accused, accept the plea of guilty and impose such sentence as the Court felt necessary in the circumstances of the case. The learned District Magistrate thought otherwise. Hence I am constrained to consider the question involved in some detail and lay down the procedure to be adopted in similar cases. 2. All the petitioners are Directors of their respective companies. Some of them are ladies and some old, residing in various parts of the State. 3. The provisions of the Criminal Procedure Code relevant for the disposal of these petitions are, S.205, 353 and 540A. It will be useful to extract these sections. "205. (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) But the Magistrate inquiring into or trying the case may, in his discretion at any stage of the proceedings, direct the personal attendance of the accused, and. if necessary, enforce such attendance in manner hereinbefore provided. 353. Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX. XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. 540A. (1) At any stage of an enquiry or trial under this Code, 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 interests of justice, the judge or Magistrate may. 540A. (1) At any stage of an enquiry or trial under this Code, 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 interests of justice, the judge or Magistrate may. If the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately." These provisions give powers to Courts to exempt the personal attendance of accused. The question is how to exercise these powers. The general rule in criminal cases is that all inquiries and trials should be conducted in the presence of the accused, the principle underlying being that in a criminal trial the Court should not proceed exparte against the accused person. Although this rule is for the protection of the interests of the accused, this does not mean that the accused has a right to absent himself from Court and that the Court should necessarily grant his prayer for exemption from personal attendance. S.205(1) gives the Magistrate jurisdiction to dispense with personal attendance of the accused while issuing summons and the power to permit him to appear through his pleader. Sub-s. (2) of S.205 authorises the Magistrate to compel the attendance of the accused at any stage. This section read with S.353 Cr. P. C. therefore clearly authorises the Court to exempt personal attendance of the accused at any stage of the trial and confers upon the Court the power to compel attendance of the accused whenever the Court wants it. The policy of the Legislature in enacting this provision is to enable Courts to freely exercise this power in the interests of justice and for expeditious disposal of cases. 4. Before 1923 there was no provision in the Code except S.205 to exempt personal attendance of the accused. The policy of the Legislature in enacting this provision is to enable Courts to freely exercise this power in the interests of justice and for expeditious disposal of cases. 4. Before 1923 there was no provision in the Code except S.205 to exempt personal attendance of the accused. It was then felt that the scope and extent of this provision was limited to the stage of commencement of the trial and when the Magistrate issued summons. There was a line of reasoning then that the power under S.205 (I) did not extend to exemption during trial. It was then understood that this power could be exercised only under the inherent power of Courts or under S.353 Cr. P. C. In 1923 therefore S.540A was added by the Amendment Act 18 of 1923. Under sub-section (1) of that section, the. trial Court was expressly conferred with power to grant exemption from personal attendance of the accused when there were two or more accused and when such accused is or are incapable of remaining before the Court, at any stage of enquiry or trial. This section was construed to confer power on the Magistrate to meet a special type of cases and under special circumstances. The scope and extent of the section as it then stood was found to be unduly narrow and the need to enlarge the powers of the Court in this respect in the interests of expeditious disposal of cases found expression among jurists and lawyers. Therefore, S.540A was amended as per the Amendment Act 26 of 1955 and a new subsection (1) was substituted which made it clear that the Court may dispense with the personal attendance of the accused when represented by a pleader, if such attendance was not necessary in the interests of justice. The amendment of the section by Act 26 of 1955 removed all the restrictions and widened the scope of the powers of Courts in this respect. Thus, by the joint operation of S.205 (1) and sub-section (1) of S.540A & S.353 of the Code, a Magistrate was enabled to exercise jurisdiction to exempt the accused from personal attendance both at the time of issuing summons and during enquiry or trial. 5. Before the decision reported in Bibhuti v. State of West Bengal (AIR. 1969 SC. Thus, by the joint operation of S.205 (1) and sub-section (1) of S.540A & S.353 of the Code, a Magistrate was enabled to exercise jurisdiction to exempt the accused from personal attendance both at the time of issuing summons and during enquiry or trial. 5. Before the decision reported in Bibhuti v. State of West Bengal (AIR. 1969 SC. 381), it was felt that the Courts were deemed to have the power to grant exemption from personal attendance of the accused during the entire trial including the day on which he is to be questioned under S.342 Cr. PC. But after the pronouncement of the Supreme Court in the case stated above the law is well-settled that the accused has to appear for questioning under S.342 Cr. PC. 6. We are here considering cases where the trials are under procedure for summons cases. When the accused appears before Court either personally or through his pleader, the particulars of the office can be put to him or to his pleader under S.242 and if the accused or his pleader admits the guilt the Court can pass orders immediately. Under S.366, sub-section (2), the accused is permitted to be absent to receive judgment when his personal attendance has been dispensed with during trial or when the sentence is one of fine only or when he is acquitted, in which case the judgment can be delivered in the presence of his pleader. It is useful to remember that these salutary provisions have been incorporated in the Code of Criminal Procedure to be resorted to, to help the accused and not to deny them their benefits. The refusal to extend to the accused the benefits of these sections in appropriate cases is to deny them justice. Courts should try to dispense justice more than law. The dignity of Courts will be preserved by being generous and liberal towards parties generally but harsh and even cruel when justice demands it. The lower Courts should not tend to derive a sadistic pleasure in making large number of accused to crowd the Court without sufficient cause and make them wait from morning till evening. The lower Courts should also guard against any tendency which leads to harassment of the parties coming before them. 7. Now, I will proceed to discuss some of the decisions which were brought to my notice by the learned counsel for the petitioners. The lower Courts should also guard against any tendency which leads to harassment of the parties coming before them. 7. Now, I will proceed to discuss some of the decisions which were brought to my notice by the learned counsel for the petitioners. Some of these cases were rendered at a time when people including judges were not attuned to the socialistic ideas of a Welfare State and when feudal concepts of respectability prevailed. That is the reason why courts have considered cases of only rich purdanasbin ladies and other respectable men: The concept of respectability has undergone revolutionary changes The yardstick to measure respectability is no longer opulence or status in life. Before a Court every one is respectable, be he rich or poor, be he highly placed or not, An ordinary labourer in a factory is equally respectable to a person occupying other positions in life. Therefore, these decisions will be useful only as a guide for the free use of S.205 and 540A of the Code. 8. In Aijaz v. Desouza (AIR. 1956 Bhopal 11), a woman sought exemption from personal attendance in a criminal case. There, the Judicial Commissioner considered the scope of S.205 and 540A and directed that the petitioner before him, being a purdanashin lady subject to special local and community customs,. was entitled to exemption under the relevant sections of the Code. While discussing the right of purdanashin ladies, the learned Judicial Commissioner considered the circumstances under which a Court can compel the attendance of women-accused. According to him, where the witnesses did not know the accused and where identification of the accused was necessary the accused can be compelled to attend Court. Even there, it was observed that the Magistrates should satisfy themselves of the need for their appearance before ordering personal attendance. 9. In a Full Bench decision of the Allahabad High Court reported in Sultan Singh v. The State (AIR. 1951 Allahabad 864), Their Lordships of the Allahabad High Court considered the scope of S.205,353 and 540A of the Code and held that S.205 read with S.353 authorises the Court to grant exemption from personal attendance at any stage of the case. 10. In Koran jia v. Chellappan Pillai (1960 KLT. 1951 Allahabad 864), Their Lordships of the Allahabad High Court considered the scope of S.205,353 and 540A of the Code and held that S.205 read with S.353 authorises the Court to grant exemption from personal attendance at any stage of the case. 10. In Koran jia v. Chellappan Pillai (1960 KLT. 643), Govinda Menon J. held that the language of sub-section (1) of S.205 is general and the exemption contemplated is for the whole duration of the trial, including the day on which the accused is to be questioned under S.342. This decision has to be read subject to the decision reported in Bihubthi v. State of West Bengal (AIR. 1969 SC. 381). 11. In Anila Bala Devi v. Kandi Municipality (AIR. 1950 Calcutta 350), a Division Bench of the Calcutta High Court held that the conduct of the Magistrate in insisting upon dragging a respectable lady to Court in a petty case cannot but be seriously condemned. 12. In Munni Begum v. State (AIR. 1968 Delhi 202), the question that was decided was largely on the right of the accused to be represented at 342 questioning, which is now covered by the Supreme Court ruling referred to above. But some observations from this judgment will be apposite. In Para.25 of the judgment, the High Court has observed: "It cannot be disputed that the present tendency of the Legislature is to permit the accused to be represented by a pleader for all purposes, particularly in petty cases, and not to compel him to come to Court personally in all cases. Cases under the Motor Vehicles Act and under some of the Municipal statutes may be mentioned as instances in point." 13. In Zain Yar Jung v. Dr. Raghotam (AIR. 1957 A.P. 468), it has been held, and according to me rightly, that the Magistrate should in the exercise of his discretion find whether the ends of justice required that the accused should be granted the exemption and not base his decision solely on the ground that it is necessary to impress upon the public that justice is being done. 14. In Ganpaf Singh v. Zora (AIR. 1951 Ajmeer 6), it has been held that where the original summons issued authorised the accused to appear before Court either personally or through a pleader the Court had a duty to exempt the accused from personal appearance. 15. 14. In Ganpaf Singh v. Zora (AIR. 1951 Ajmeer 6), it has been held that where the original summons issued authorised the accused to appear before Court either personally or through a pleader the Court had a duty to exempt the accused from personal appearance. 15. The learned Public Prosecutor brought to my notice the decision reported in Asst. Registrar of Jt. Stock Companies v. Krishnan Nambiar (28 (1958) Company Cases 255) to show that the offences under the Companies Act are not technical offences. It is worthwhile remembering that in that case the Court sentenced the accused to a fine of Re. 1/- for violation of some of the provisions of the Companies Act. It was in that connection that this Court observed that the offences were not technical. The principle enunciated in that case cannot be pressed into service to show that the offences with which the petitioners are charged in these cases are not technical offences. 16. In Kanchan Bai v. The State (AIR 1959 Madhya Pradesh 150), the principle governing orders to be passed by Magistrates in dispensing with personal attendance of women were laid down. It was held there that in the matter of dispensing with personal attendance of women accused, the discretion under S.540A should be liberally exercised by the Subordinate Courts. 17. In Rusi Biswal v. Nakyatramalini Devi (AIR. 1954 Orissa 65), which was a case relating to a purdanashin lady, it was held that to insist on her personal attendance would involve unnecessary waste of time and harassment to her. The Court further observed: "It is not obligatory on the Magistrate to direct the personal attendance of the accused who has been exempted under S.205 at any stage, including examination under S.342 " In Dorabshah v. Emperor (AIR 1926 Bombay 218), a Division Bench of the Bombay High Court held that a Court can dispense with the personal attendance of the accused under S 205 Cr, PC. at any stage. 18. In the Criminal Rules of Practice (Madras), R.82, which was applicable to the 'erstwhile Malabar area, provides that when several accused are brought before a Court one of them can be permitted to represent the others in the case and the rule directed that the Courts should be liberal in granting such exemptions. at any stage. 18. In the Criminal Rules of Practice (Madras), R.82, which was applicable to the 'erstwhile Malabar area, provides that when several accused are brought before a Court one of them can be permitted to represent the others in the case and the rule directed that the Courts should be liberal in granting such exemptions. R.82 is extracted below; "Criminal Courts should, as a rule, in cases where there are more accused than one, permit any one of them to be authorized by any other to appear, plead or act for such other in any criminal proceeding; but the authority shall be in writing and shall contain the signature or the thumb impression of the party giving it, and shall be filed in Court." This rule was freely used to help persons who had to attend to their daily work by granting exemption from personal attendance and asking one of the accused to be present in Court. Unfortunately, a similar rule is not seen in the Criminal Rules of Practice applicable to the Kerala State. 19. On a consideration of all the aspects of the case lam of the view that in cases where the Court finds that the appearance of the accused is not necessary for a disposal of the case and where an Advocate undertakes on behalf of the accused to be present in Court, the Courts should be liberal in exempting the accused from personal attendance. It is useful to remember that an Advocate before Court is a responsible officer and when he undertakes on behalf of an accused to be present in Court it has to be given due weight. Courts should be generous in extending the benefits of S.205, 353 and 540A to the accused. In cases which are grievous in nature involving moral turpitude, personal attendance is the rule. But in cases which are technical in nature, which do not involve moral turpitude and where the sentence is only fine, exemption should be the rule. The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels that his presence is necessary for effective disposal of the case. When the accused are women, labourers, wage-earners and other busy men, Courts should as a rule grant exemption from personal attendance. The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels that his presence is necessary for effective disposal of the case. When the accused are women, labourers, wage-earners and other busy men, Courts should as a rule grant exemption from personal attendance. Courts should see that undue harassment is not caused to the accused appearing before them. I wish to make it clear that the above observations are subject to the fact that in special cases where the Courts feel presence of the accused necessary, it should be insisted upon. 20. The learned Magistrate has observed in one or two cases under review that it will not be possible to collect the fine imposed if the accused are exempted from personal attendance. The arms of law are long enough to get at an accused. The Magistrate should not forget that there are wide powers in his armoury to reach at the accused. 21. All these cases, as I have already stated, are cases under the Companies Act and all are private limited companies. The learned counsel for the petitioner submitted before me that if personal attendance was exempted on the first hearing day itself, the cases could have been disposed of on that day. It is in this context that the salutary provisions in S.205 and 540A should be construed in the interests of expeditious disposal of cases. I would have been happy if the learned District Magistrate had permitted the accused to be represented by pleaders and collected the fine and disposed of the cases on the first hearing date itself. I find it difficult to agree with him in the orders passed by him in these cases which according to me are neither warranted by the circumstances of the case nor necessary in the interests of justice. I feel that interests of justice has suffered in these cases by the refusal to grant exemption prayed for. Even in cases where the District Magistrate himself had issued summons to the accused to appear either in person or through pleader, he has not allowed the pleader to represent the accused and in some other cases he has issued warrant. I am constrained to observe that this was a negation of justice. Even in cases where the District Magistrate himself had issued summons to the accused to appear either in person or through pleader, he has not allowed the pleader to represent the accused and in some other cases he has issued warrant. I am constrained to observe that this was a negation of justice. It behoves me therefore to emphasise the liberality built in the sections enumerated above enabling the Magistrates to extend their benefits to the accused appearing before them and to avoid unnecessary harassment. I therefore bold that in all trivial and technical cases where the accused are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists Courts should invariably exercise discretion liberally to exempt such persons from personal attendance. 22. Now, I have to consider the nature of the order that has to be passed in these revision petitions. Two courses are open to me: either to exempt the personal attendance of the accused myself or to direct the Magistrate to exempt the personal attendance of the accused persons before him in these cases. I think it will be useful in this connection to consider a few cases where Courts have passed different orders. 23. In Raj Rajeswara Debi v. Emperor (1914) XV Criminal Law Journal 281), a Division Bench of the Calcutta High Court allowed the accused who were ladies to appear at the enquiry or trial by their pleader or pleaders and also directed that the personal attendance of the ladies should be dispensed with till the Sessions Judge passes his order in the case. In Mt. Tirbeni v. Mt. Bhagwati (AIR. 1927 Allahabad 149), which arose from a reference by the Sessions Judge on an order passed by the Magistrate refusing to exempt the personal attendance of the accused, the High Court accepted the recommendation of the Sessions Judge and directed the Magistrate to proceed with his enquiry and to dispense with the attendance of the accused. In In re Hasanath (AIR. 1947 Madras 433), the Madras High Court held that under S.561A of Cr. PC. the powers of the High Court were wide enough to direct the Magistrate to dispense with personal attendance of the accused during an enquiry by him. 24. In Erf an Ali v. The King (AIR. In In re Hasanath (AIR. 1947 Madras 433), the Madras High Court held that under S.561A of Cr. PC. the powers of the High Court were wide enough to direct the Magistrate to dispense with personal attendance of the accused during an enquiry by him. 24. In Erf an Ali v. The King (AIR. 1948 Patna 418), where the Magistrate had refused to exempt personal attendance of the accused, the High Court permitted the accused to appear through a pleader "provided a pleader is present to represent him on the next and every subsequent occasion on which the case is taken up". In Chimanlal v. Parashar Singh (AIR. 1959 Nagpur 101), where the accused applied for personal exemption from appearance on the ground that they have extensive business in various places, the High Court granted them exemption from personal attendance and permitted them to appear by a pleader. 25. It is therefore clear with reference to the authorities cited by me above that this Court can in revision exempt the personal attendance of the accused in cases pending before the lower Courts or direct the lower Courts to grant exemption from personal attendance of the accused before them, where such courts have refused to do so. I think in these cases the better procedure to be adopted is to direct the lower Court to exempt the personal appearance of the accused in the cases from which these revision petitions have arisen. 26. In Crl. R. P. Nos. 226 and 227 of 1972 the petitioners filed an application for exemption from personal appearance for a day and requested that the plea of guilty may be accepted. The lower Court allowed the petition for exemption for that particular day but refused to accept the plea of guilty indicated in the petition and adjourned the case for another day for appearance of the accused. In these cases, summons issued clearly stated that the accused can appear either in person or through a pleader. However, in view of the fact that the application made by the petitioners in these cases was only for exemption for one day, which was allowed by the lower Court, I direct the petitioners to file another application in these cases praying for exemption from personal attendance and to permit their pleader to appear on their behalf. However, in view of the fact that the application made by the petitioners in these cases was only for exemption for one day, which was allowed by the lower Court, I direct the petitioners to file another application in these cases praying for exemption from personal attendance and to permit their pleader to appear on their behalf. I also direct the learned District Magistrate to exempt the petitioners from personal attendance if such an application is made and then proceed in accordance with law in the light of the observations contained in the earlier portions of this order. In the result, these criminal revision petitions are allowed and the learned District Magistrate is directed to exempt personal attendance of the accused in these cases, permit them to appear through their pleader and to proceed according to law.