S. NIHAL SINGH v. ARJAN DAS — 1984 DIGILAW 247 (DEL)

( 1 ) THIS revision petition raises an important question of law, viz. , whether in a summons case the personal appearance of an accused can be dispensed with at the stage of recording his plea to the substance of accusation read out to him as laid down in S. 251, Cr P. C. (for short the Code.) ( 2 ) THE facts germane to the decision of this question succinctly are that the petitioners - Nihal Singh, Parkash Joshi and S. K. Kohli were at the relevant time Editor-in-Chief, Editor and Publisher of a reputed daily English newspaper indian Express . On 4th Nov. 1981 newspaper published a news item in its Delhi edition captioned "congress (I) Leader Blocks Checking of Food Stuff". The report, inter alia, mentioned that the respondent-Arjan Das ; prevented a team of Delhi Administration officials led by Miss Khiangte, as IAS officer, from checking food samples. On the next following day, viz. , 5th Nov. 1981 the said newspaper carried a further news item titled "police Case against Arjun Dass". The said report extracted passages from the FIR lodged by Miss Khiangte as also an inspection note which was sent by her to the department. Feeling incensed over the said reports the respondent instituted a complaint under S. 500, I. P. C. , in the court of the Metropolitan Magistrate against the present petitioners and some other persons but we are not concerned with them. The petitioners moved separate applications for their exemption from personal appearance during the course of trial. However, the learned Magistrate declined their request vide order dt. 25th Jan 1982. Feeling aggrieved by the said order, the petitioners moved a petition under S. 482 of the Code being Cr. M (M) No. 76/82 for quashing the said order. The said petition came up for preliminary hearing on 11th Feb. 1982 before Kirpal, J. His Lordship while admitting the petition to hearing made a direction that "in the meantime the petitioners are exempted from personal appearance before the trial court on the dates of hearing fixed in the trial. " This order was made in Cr. M. 214/82. Subsequently, direction was made that the aforesaid interim order would continue till further orders. It would appear that the main petition is still pending and has not been disposed of. However, the learned Metropolitan Magistrate (Mrs. Deepa Sharma) vide order dt. " This order was made in Cr. M. 214/82. Subsequently, direction was made that the aforesaid interim order would continue till further orders. It would appear that the main petition is still pending and has not been disposed of. However, the learned Metropolitan Magistrate (Mrs. Deepa Sharma) vide order dt. 5th Jan 1984 for receiving (Sic) notice under S. 251 of the Code. She, inter alia, observed : "further I feel that the attendance of the accused is necessary at the stage of notice under S. 251, Cr. P. C The language of S. 251 Cr. P. C. as such requires that the particulars of the offence shall be stated to the accused and he shall be asked whether he pleads guilty or not or has any defence to make. . . . . . . There is nothing in the language which suggests that the Pleader or any authorised person can receive the notice on behalf of the accused and can plead guilty or not. " the learned Magistrate further observed that : "the offence complained of in the instant case is not petty because the offence of defamation is punishable with imprisonment for two years. " ( 3 ) FEELING aggrieved, the petitioners have come up with this petition under S. 482 of the Code seeking to invoke the inherent jurisdiction of this court to quash the impugned order as being illegal, void and wholly without jurisdiction. ( 4 ) I have heard the counsel for the parties at considerable length. The learned counsel for the petitioners has canvassed with great fervor that once exemption from personal attendance is granted to the accused, there is absolutely no bar to the substance of accusation being read out, as envisaged in S. 251 of the Code, to his lawyer representing him because appearance of the Pleader in such a situation constitutes appearance of the accused and he can perform all the acts and discharge all the duties imposed by law as if he were the accused incarnate. On contrary, the learned counsel for the respondent has urged with equal vehemence that S. 251 has to be read in conjunction with S. 252 of the Code and on a combined reading of both the Sections it is manifest that the privilege of hearing the substance of accusation and pleading guilty thereto or not is personal to the accused and the lawyer representing him in a case where his personal appearance is dispensed with cannot exercise that privilege. ( 5 ) S. 205 occurs in Chapter XVI of the Code which deals with "commencement of proceedings before Magistrate. " S. 204 relates to "issue of process". S. 205 empowers the Magistrate to dispense with the personal attendance of the accused whenever he issues a summons and he sees reasons so to do. In that event he may permit the accused to appear through his pleader. However the Magistrate inquiring into or trying the case may in his discretion in exercise of the power conferred on him by sub-sec. (2) of S. 205, at any stage of the proceedings direct the personal attendance of the accused and if necessary, enforce such attendance in the manner provided in the Code. ( 6 ) ON a plain reading of S. 205, it is manifest that it constitutes an exception to the general rule, namely, that an accused person must be present in person during the course of inquiry or trial in a criminal case. Under this Section the Magistrate may dispense with the personal attendance of the accused in a particular class of cases, namely, those in which he issues a summons. Although the opening words of this Section suggest that this power can be exercised only at the initial stage when the Magistrate is considering the question whether to issue summons or warrant but it has been held by various High Courts that the power under S. 205 can be exercised not only when he is issuing the summons but also at any subsequent stage. The only limitation is that the Magistrate who issues the summons can alone exercise the power and not any other Magistrate. However, I need not go into this question as it does not crop up in the instant case. As stated above, the personal appearance of the petitioners was exempted by this court in Cr. M. (M)76/82. The only limitation is that the Magistrate who issues the summons can alone exercise the power and not any other Magistrate. However, I need not go into this question as it does not crop up in the instant case. As stated above, the personal appearance of the petitioners was exempted by this court in Cr. M. (M)76/82. Since the said order was still in force when the Magistrate passed the impugned order it is liable to be quashed on the short ground that it offends/violates the said order. However, I am constrained, in the interest of justice, to examine the impugned order on merits because the learned Magistrate has, inter alia, expressed the opinion that in view of the language of S. 251 of the Code the particulars of the offence have got to be stated to the accused personally and there is nothing therein to suggest that a Pleader or any authorised person can receive the notice on behalf of the accused and plead guilty or not guilty thereto. As shall be presently seen, this conclusion stems from an erroneous interpretation of the relevant Sections viz. 205, 251 and 252 of the Code. ( 7 ) THE words "may if he sees reason so to do" clearly show that the Magistrate has a discretion to dispense with the personal attendance of the accused or not as he deems fit. It is well settled that where discretion vests in the court it has to be exercised judicially keeping in view all the circumstances of the case and the larger interest of justice. In other words while dispensing with the presence of the accused the Magistrate must address himself to the question whether exemption of the accused at the stage of trial or stating the substance of accusation will not, in any way, prejudice him or the complainant. Secondly, he has to ensure that by declining to exercise that discretion vesting in him he is not putting the accused to avoidable hardship and harassment. So, there must be cogent and convincing reasons for rejection of an application. This becomes all the more necessary in view of the fast changing social values and the firmly rooted concept of a welfare State. So, there must be cogent and convincing reasons for rejection of an application. This becomes all the more necessary in view of the fast changing social values and the firmly rooted concept of a welfare State. The power to dispense with personal appearance of the accused should, therefore, be liberally exercised except, of course, in criminal cases of a serious nature which involve moral turpitude and where the offence is punishable with a sentence of long imprisonment. The question would naturally arise whether any useful purpose would be served by requiring the personal presence of the accused to receive notice regarding the substance of accusation and plead guilty thereto or not. It is not comprehensible why this act cannot be performed if the accused is permitted to appear through his counsel who is naturallysupposed to be a responsible officer of the court. It may be noticed that the prescribed form of summons to be issued to an accused (Form No. 1, Second Schedule) reads as under :- "whereas your attendance is necessary to answer to a charge of (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the Magistrate. " ( 8 ) THIS form has been evidently drafted keeping in view the provisions of S. 251 which require that when the accused appears or is brought before the Magistrate the particulars of the offence are to be stated to him and his plea is then recorded at the very commencement of the trial. Thus, the prescribed form of summons is designed to intimate the accused the purpose for which he is being summoned and what proceeding is to take place on his appearance in court. The primary object of the proceedings prescribed in S. 251 being to determine whether the accused pleads guilty to the charge or not, it is not comprehensible why this act cannot be performed by his counsel. The primary object of the proceedings prescribed in S. 251 being to determine whether the accused pleads guilty to the charge or not, it is not comprehensible why this act cannot be performed by his counsel. Even if the accused pleads guilty to the charge the court can certainly find him guilty of the offence charged with and pronounce judgment and sentence as contemplated in S. 353 (6) of the Code which provides that the accused, if not in custody, shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. There can thus be no manner of doubt that if the court is of the view that the sentence to be imposed on plea of guilty must be one of imprisonment, the accused can be called upon to appear in person to receive the sentence. ( 9 ) IT may be pertinent at this stage to allude to the provisions contained in S. 317 (corresponding to S. 540a of the old Code) which appears in Chapter XXIV which contains general provisions as to inquiries and trials. Under the said Section too the Judge or the Magistrate can at any stage of inquiry or trial dispense with the personal attendance of the accused if he is satisfied that the presence of the accused is not necessary in the interest of justice or that the accused persistently disturbs the proceedings in the court. However, personal appearance of an accused can be dispensed with only if he is represented by a Pleader. Obviously, this provision too has been designed to facilitate the progress of trial without insistence on the personal appearance of the accused in cases where the same can be dispensed with without prejudice to the accused or the complainant. The court should, therefore, be generous in exempting the accused from personal appearance unless it considers that his presence is essential for proper hearing of the case which will be by and large the case when an accused is facing trial for a heinous offence and the charge against him is grave one. The court should, therefore, be generous in exempting the accused from personal appearance unless it considers that his presence is essential for proper hearing of the case which will be by and large the case when an accused is facing trial for a heinous offence and the charge against him is grave one. Needless to say that where an accused is granted exemption from personal attendance on his prayer it will not be open to him to complain later on that the exemption was wrongly granted and, therefore, the trial is vitiated by material irregularity. ( 10 ) IN Dorabshah Bomanji v. Emperor, AIR 1926 Bom 218 : (27 Cri LJ 440), a Division bench of Bombay High Court on a consideration of the relevant provisions of the Cr. P. C. 1898 held that: ". . . . . IN a case where the Court has allowed an accused to appear by a pleader, it must be taken that such appearance involves the performance of all acts that devolve upon the accused in the course of the trial unless the Magistrate thinks it necessary or desirable that the accused himself should be present for any particular purpose, such as for examination by the court under S. 342 or pleading to a charge under S. 255. " ( 11 ) FAWCETT. J. who spoke for the court further observed that: "therefore, I am not prepared to assent to the proposition that, where a court does dispense with the attendance of an accused appearing by a pleader under S. 205, the Court cannot act upon the plea given by his pleader in a case falling under Ss. 242 and 243 of the Cr. P. C. " ( 12 ) SIMILAR view was expressed by a Full Bench of the Calcutta High Court in Smt. Prova Debi v. Mrs. Fernandes, AIR 1962 Cal 203, S. K. Sen, J. who spoke for the majority observed that :- "from the terms of S. 205 (1) and the form of the summons as set out above, it is clear that the accused may, when so permitted, appear by his pleader to answer the charge. . . . . Fernandes, AIR 1962 Cal 203, S. K. Sen, J. who spoke for the majority observed that :- "from the terms of S. 205 (1) and the form of the summons as set out above, it is clear that the accused may, when so permitted, appear by his pleader to answer the charge. . . . . There is no express provision in either S. 242 or 243 of the Code indicating that the personal presence of the accused is necessary either to hear the accusation explained or to show cause and plead; indeed if there were, there would be no point in saying that the accused may appear by his pleader to answer the charge. " ( 13 ) IT may be pertinent to notice here that the full Bench went still further to lay down that :- "where a Magistrate has permitted an accused to be represented by a pleader under S. 205 (1) or S. 540-A (1) he is not bound to compel the appearance of the accused for examination under S. 342 of the Cr. P. C. ; he may exercise his discretion in the matter, and examine the pleader of the accused on his behalf. " ( 14 ) THIS question was considered at great length by a learned single Judge of this court (Hardayal Hardy, J.) in Mst. Munni Begum v. State, AIR 1968 Delhi 202: (1968 Cri LJ 1162 ). After alluding to a large number of decisions of various High Courts, both for and against the view, his Lordship observed that :- "in the very nature of things, if the personal attendance of the accused has already been dispensed with, the answer to thecharge will have to be made by his pleader. If the plea is one of guilty, the Magistrate shall, under sub-sec. (5), record the plea and may, in his discretion, convict him thereon. This will attract the application of S. 366 (2 ). But if on the other hand the pleader on behalf of the accused either refuses to plead or does not plead, or claims to be tried, the Magistrate shall, under sub-sec. (6), fix a date for the examination of the witnesses and so on and so forth. . . . This will attract the application of S. 366 (2 ). But if on the other hand the pleader on behalf of the accused either refuses to plead or does not plead, or claims to be tried, the Magistrate shall, under sub-sec. (6), fix a date for the examination of the witnesses and so on and so forth. . . . " ( 15 ) IN the aforesaid case too, following the Full Bench decision of the Calcutta High Court and some other decisions the learned Judge held that: ". . . . It is not at all obligatory on the Magistrate to require the personal attendance of an accused to whom exemption from personal appearance has already been granted for his examination under S. 342 of the Code and it is indeed a sound exercise of discretion in all summons cases, except in some very special cases alluded to by me, that such appearance should not be insisted upon by the Court. " ( 16 ) THE question whether personal appearance of the accused should be insisted upon for the purposes of his examination under S. 342 of the old Code came up for consideration before the Supreme Court in Bibhuti Bhusan Das Gupta v. State of West Bengal, AIR 1969 SC 381 Overruling the Full Bench decision of Calcutta High Court (supra), their Lordships held that: "even in a case where the Magistrate has dispensed with the personal appearance of the accused, a pleader cannot represent the accused for purposes of S. 342 of the Cr. P. C. Except where the accused is a Company or a juridical person and hence cannot be examined personally, in all other cases only the accused can be examined under S. 342 of the Cr. P. C. Examination of a pleader is not a sufficient compliance with S. 342. " ( 17 ) THUS, the controversy, if any, which existed regarding the necessity of examining the accused under S. 342 of the old Code in person was set at rest. It is, however, significant to note that their Lordships refrained from expressing any opinion on the question : "whether the court can act upon an admission of guilt by the pleader under Ss. 242, 243, 251a, 255 and 271 of the Code where an accused is permitted to appear by his pleader under S. 205? It is, however, significant to note that their Lordships refrained from expressing any opinion on the question : "whether the court can act upon an admission of guilt by the pleader under Ss. 242, 243, 251a, 255 and 271 of the Code where an accused is permitted to appear by his pleader under S. 205? Dorabshah Bomanji Dubash s case (1926) 27 Cri LJ 440) (Bom) (supra) was specifically alluded to in this context and their Lordships observed : "it is sufficient to say that the language of those sections and the effect of admissions under them are entirely different. " ( 18 ) IT is thus crystal clear that the considerations which weighed with their Lordships for the view expressed by them regarding necessity of examining an accused personally under S. 342 (old)/313/ (new) are not at all germane to the decision of the controversy whether the plea of the accused to a charge/substance of accusation can be made by his pleader where his personal attendance has been dispensed with. I may also advert to two more decisions which are subsequent to the Supreme Court decision in Bibhuti Bhushan Das Gupta s case (1969 Cri LJ 654) (supra ). These are Helen Rubber Industries Kottayam v. State of Kerala, 1973 Cri LJ 262 (Ker) and S. P. Sinha v. Labour Enforcement Officer (Central), 1976 Cri LJ 76 (Cal ). In both these cases the learned Judges have expressed the view that the Court should be generous in extending the benefits of Ss. 205, 353 and 540a to the accused except in cases which are grievous in nature involving moral turpitude. Said Khalid, J. in Helen Rubber Industries Kottayam s case (1973 Cri LJ 262) (Ker) (supra) : "it is useful to remember that these salutary provisions have been incorporated in the Cr. P. C. to be resorted to, the 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 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. " ( 19 ) SIMILARLY, N. C. Talukdar, J. observed in S. P. Sinha s case (1976 Cri LJ 76) (Cal) (supra) that : "the exigencies of a welfare State call for a wider outlook and new dimensions must be broken. Modern penology must keep pace with the pressing demands of the modern age and dovetail into the manifold demands of a welfare society. " ( 20 ) I am in respectful agreement with these observations. There can be no manner of doubt that the Courts must exercise the discretion vesting in them with a broad approach in the backdrop of the manifold demands of a welfare society and they must not stultify these beneficent provisions by an out-moded approach that an accused must face the consequences of his involvement in a criminal case by appearing in person irrespective of his placement in life, other preoccupations and obligations which he may have to discharge. The feudal concept of respectability has to be given a go-bye in consonance withsocialistic ideas of a welfare State. ( 21 ) IT would also be significant to note here that in S. 313 (1) of the Code which corresponds to sub-sec. (1) of S. 342 of the old Code, the word "personally" has been added after the word "accused" and it is now incumbent upon the Court to examine the accused under this Section personally. This is in perfect conformity with the view expressed by the Supreme Court in Bibhuti Bhusan Das Gupta v. State of West Bengal (1969 Cri LJ 654) (supra ). However, while effecting this amendment the legislature has introduced a provision to the effect that in a summons case where the Court dispenses with the personal attendance of the accused, it may also dispense with his examination under Cl. (b) of sub-sec. (1) thereof. However, while effecting this amendment the legislature has introduced a provision to the effect that in a summons case where the Court dispenses with the personal attendance of the accused, it may also dispense with his examination under Cl. (b) of sub-sec. (1) thereof. Now that the Court has discretion to dispense with personal examination of the accused under S. 313 (1) there is no valid reason why it will not have discretion to dispense with the personal appearance of the accused while recording his plea to the charge or substance of accusation in a summons case. Looked at from this angle too, the answer to this question is bound to be in the affirmative. However, as observed earlier, there can be no dogmatic approach to the problem and the Court will have (to) consider the question from practical point of view in each case whether the personal appearance of the accused should be dispensed with in the larger interest of administration of justice. ( 22 ) AS for the argument of the learned counsel for the respondent that if S. 251 is read in conjunction with S. 252, the legislative intent that the plea to the substance of accusation has to be recorded on the personal appearance of the accused becomes manifestly clear, suffice it to say that this contention too does not bear close scrutiny because S. 252 simply lays down that if the accused pleads guilty the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Evidently this section has no bearing on the question whether the personal appearance of the accused is imperative when substance of accusation is to be read under S. 251. This Section is designed to lay emphasis on the manner in which the plea of guilty is to be recorded by making it obligatory on the Magistrate to record the same as nearly as possible in the words used by the accused. The obvious reasons for this requirement is that the plea of the accused if couched in correct language may not warrant the conclusion arrived at by the Magistrate after hearing his statement. It is a very salutary provision and is meant for the protection of the accused and the proper administration of justice. The obvious reasons for this requirement is that the plea of the accused if couched in correct language may not warrant the conclusion arrived at by the Magistrate after hearing his statement. It is a very salutary provision and is meant for the protection of the accused and the proper administration of justice. Needless to say that if the plea of the accused is not recorded as nearly as may be in his own words but the Magistrate records his own conclusion which the Magistrate may reach after hearing his plea, the superior Court of appeal will be deprived of the opportunity of examining the validity of his conclusion. In Mahant Kaushalya Das v. State of Madras, AIR 1966 SC 22 on which reliance has been placed by the learned counsel for the respondent in support of his foregoing contention, the accused had appeared personally when particulars of offence were explained to him. Since the accused did not know English or Tamil in which language the proceedings were conducted, the particulars of the offence were explained to the accused through the interpreter and the same interpreter interpreted the plea of guilty to the Court. Under these circumstances, it was held that it cannot be said that the admission of the accused had been recorded "as nearly as possible" in the words used by him as required by S. 243 of the old Code. Their Lordships further observed that : "the requirement of the section is not a mere empty formality but is a matter of substance intended to secure proper administration of justice. It is important that the terms of the section are strictly complied with because the right of appeal of the accused depends upon the circumstance whether he pleaded guilty or not and it is for this reason that the legislature requires that the exact words used by the accused in his plea of guilty should, as nearly as possible, be recorded in his ownlanguage in order to prevent any mistake or misapprehension. " ( 23 ) OBVIOUSLY situation like the one obtaining in Mohant Kaushalya Das s case (1966 Cri LJ 66) (SC) (supra) would not arise where the plea of the accused is recorded through his counsel who statutorily personates the accused for all intents and purposes because in that event there will be absolutely no difficulty on the part of the Magistrate in recording the plea as nearly as possible in the words of the lawyer representing the accused. It would in other words, mean that the word "accused" in Ss. 251 and 252 is not limited to the person of the accused but may include a pleader where he is permitted by the Court to appear through him. Hence, this argument too is devoid of any merit. ( 24 ) COMING to the facts of the instant case, it has been noticed above that the petitioners are Editor-in-Chief, Editor and Publisher of a widely circulated English daily and there can be little doubt that they must have manifold duties to perform. Further, Shri Nihar Singh petitioner is stated to have gone to United States of America where he is a visiting professor in a university. Obviously, it will cause lot of expense and hardship if he is required to come all the way from U. S. A. simply to answer the substance of accusation under S. 251 when this act can well be performed on his behalf by his duly authorised pleader. Hence, the instant appears to be a fit case where the learned Magistrate ought to have exercised the discretion to dispense with the personal appearance of the accused even at the stage of recording their plea under S. 251 of the Code. ( 25 ) TO sum up, therefore, the impugned order cannot be sustained. This revision petition is accordingly allowed and the exemption is granted to the petitioners from personal appearance during the course of the trial unless, of course, for any special reason their personal appearance is considered necessary by the Court below in which eventuality the power under sub-sec. (2) of S. 205 may be exercised by the Magistrate. Petition allowed.