Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 618 (RAJ)

Jairam v. State of Rajasthan

1996-05-28

M.A.A.KHAN

body1996
Honble KHAN, J. – Heard learned counsel for the petitioner and the learned Public Prosecutor. This Petition under Section 482 Cr.P.C., is directed against the order dated April 20, 1996, whereby the Additional Chief Judicial Magistrate No.2, Jaipur City, Jaipur, dismissed the application under Section 205 Cr.P.C., moved by the petitioners. (2). The petitioners are being prosecuted in the Court of learned Magistrate since 13.9.1995 for allegedly having committed the offence punishable under Sections 451, 323 and 504 IPC. After the filing of the charge-sheet the petitioners are stated to have appeared before the learned Magistrate on 13.9.1995, 28.10.1995, 20.12.1995, 24.2.1996, 20.4.1996 and may be, thereafter. It appears that on 20.4.1996 the substance of the accusation were read over to the petitioners. Thereafter the petitioners moved an application under Section 205 Cr.P.C. requesting the learned Magistrate to exempt their personal attendance in the case and to allow their appearance through counsel. The contention made by the petitioners in the application was that Jairam (petitioner No.1) and Kunj Behari (petitioner No. 2), were Govt. servants and they cannot appear before the court on every date of hearing at the cost of their public duties. Petitioner No.3 Dharmendra Singh, is stated to be carrying on some business. In support of their contention, the petitioners relied upon a decision of this Court in Gopalram & Ors. vs. The State of Raj. & Anr. (1). The learned Magistrate, however, dismissed the application of petitioners mainly on the ground that the matter of granting exemption from personal attendance to an accused, is in the discretion of court concerned and that the decision cited by the petitioners does not lay down a contrary law. (3). The learned counsel for the petitioners vehemently urged that undoubtedly the grant or refusal to grant exemption to an accused person from personal attendance in the course of hearing against him, lies within discretion of the Magistrate but such discretion is required to be exercised judiciously and not arbirarily. The learned counsel further submitted that no question of identity of the accused persons was involved in the present case and since they were duly represented through a counsel, the progress of the trial against them was not likely to be hampered. The learned counsel further submitted that no question of identity of the accused persons was involved in the present case and since they were duly represented through a counsel, the progress of the trial against them was not likely to be hampered. The learned counsel for the petitioners further pointed out that in the case of Gopalram (supra), this Court had laid down the guidelines for the lower courts and had stressed that ordinarily exemption from personal attendance should be granted in the larger interest of the life of litigation and the proceedings of the case against an accused may be taken in his absence when his interests are duly safe-guarded by his counsel. (3). The learned Public Prosecutor, though supported the order under consideration, yet she stressed that the matter of grant or refusal to grant exemption from personal attendance to an accused person in the course of hearing against him, lies in the discretion of the Magistrate and this Court should not interfere in such matter in exercise of its powers under Section 482 Cr.P.C. (4). I have given due consideration to the arguments advanced before me and I am constrained to observe that the learned Magistrate has exercised his discretion quite arbitrarily and, if it can be said so, in dis-obedience of the guidelines given by this Court in the case of Gopalram (supra). (5). The scheme of the Court clearly shows that the purpose behind granting exemption to an accused person from personal attendance is that the proceedings may be taken in the case against him expeditiously and the hearing be not adjourned only for the absence of the accused. While issuing process under Section 204 Cr.P.C., the Magistrate is given power under Section 205 Cr.P.C. to grant exemption from personal attendance to an accused and may allow him to appear through his counsel. It exhibits that the approach of the Magistrate at the time of initiating the criminal proceedings may be quite liberal, in so far as the personal attendance of an accused is concerned. That apart, Section 317 Cr.P.C. further em- powers the court to grant exemption from personal attendance to the accused at any stage of the enquiry or trial against him provided that the accused person is represented through a counsel and that the progress of the proceedings is not held up due to his absence. That apart, Section 317 Cr.P.C. further em- powers the court to grant exemption from personal attendance to the accused at any stage of the enquiry or trial against him provided that the accused person is represented through a counsel and that the progress of the proceedings is not held up due to his absence. Section 317 Cr.P.C. further stresses that where the presence of an accused causes interference in the proceedings of the case or that his absen- ce could be conveniently ignored and is not necessary for the progress of the case and he is represented through a counsel, the absence of the accused should be excused and the case should proceed further. (6). In the case of Gopalram (supra), this court observed in paras 5 and 7 and follows :– ``5. A joint reading of Sections 205 and 317 Cr.P.C. makes it clear that the Court has been empowered to dispense with the personal attendance of the accused at all stages. While Section 317 Cr.P.C. covers the stages after the commencement of inquiry or trial, Section 205 deals with commencement of the proceedings before the Magistrate thereby indicating that for proper reasons, the presence of the accused could be dispensed with right from the initial stage. The Code specifically provides in Section 205 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 a pleader. It is the basic principle of criminal jurisprudence that nothing should take place behind the back of the accused and the Court should 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 the trial. No- where in the Code we find that the accused has to be present at each and every hearing of the case. Where presence of the accused is necessary during inquiry or trial, it has been specifically provided in the Code. 7. Now, further question for consideration is : in what cases, the power to dispense with personal attendance of the accused should be exercised by a Court of law? Where presence of the accused is necessary during inquiry or trial, it has been specifically provided in the Code. 7. Now, further question for consideration is : in what cases, the power to dispense with personal attendance of the accused should be exercised by a Court of law? At the out-set, it may be stated that no hard and fast rule can be laid down for the exercise of this power and each case will have to be considered after giving due weight to the attendant circumstances. Ordinarily, the Court should be generous and liberal in exempting the accused from personal appearance except in cases of serious nature, and cases of moral turpitude. The Court should consider the nature of accusation and the prejudice, if any, likely to be caused if personal attendance is made compulsory. Therefore, in trivial criminal cases, personal attendance of the accused should be exempted as a rule, if no prejudice was likely to be caused in the fair trial. The Court has to weigh inconvenience to be caused to the accused, if he is required to be absent from his vocation, profession, trade or occupation by calling him for attendance in the Court, against the prejudice likely to be caused if he does not appear in the Court.... (7). A study of the above observations of this Court clearly shows, that in the interest of progress of the criminal proceedings against an accused, the court should ordinarily be liberal in granting the exemption from personal attendance to him. If the case may proceed further in the absence of the accused without adversely affecting the interests of the complainant, then the ordinary rule should be grant of exemption from personal attendance. There is no sense in requiring the persons to attend the courts without making any progress in the case. It is far far better if one or two of the accused persons, out of so many, may be asked to attend the dates of hearing and the rest of the accused are allowed exemption from personal attendance and are allowed to be represented through their counsel. This may not only minimise the crowd at the door of courts but also would be convenient for the litigant public and would help the court to hear and dispose of case expeditiously. This may not only minimise the crowd at the door of courts but also would be convenient for the litigant public and would help the court to hear and dispose of case expeditiously. The courts are, therefore, expected to take a practical view of the matter, to be alive to the inconveniences and difficulties of the litigant public attending the courts without any progress in their cases and to keep in mind the spirit behind Section 205 and 317 Cr.P.C. The excused absence of the accused should not be made a ground for adjournment of the case itself otherwise it would forfeit the very object of Section 317 Cr.P.C. (8). In the present case, the charges levelled against the petitioners were relating to the offence punishable under Sections 451, 323 and 504 IPC. Two of the petitioners were employed in the affairs of the State and were discharging their public duties. Undisputedly, the petitioners are represented through a counsel. Their interests are, therefore, clearly safe-guarded. No question of establishing their identity at the trial appears to be involved in the present cases, inasmuch as the petitioners are named in the FIR as also in the charge-sheet and were not required to appear before any identification parade. The trial of the case against them can, therefore, conveniently proceed in their absence without causing any harm to the interests of the complainant. Before rejecting the prayer, the learned Magistrate was expected to have taken into consideration all these facts. (9). It is really painful and alarming that the learned Magistrate has deliberately avoided to follow the decision of this Court without giving any cogent reasons to do so. The Magistrate shall, therefore, be called upon to explain his conduct in relation to the proceedings of this case. (10). To sum up, the order under consideration is hereby quashed as it is found that the learned Magistrate has exercised his discretion in an arbitrary manner. The Magistrate is directed to re-consider the prayer of the petitioners and to pass appropriate orders in that behalf keeping in mind the guidelines given by this Court in the case of Gopalram (supra) as also as contained hereinabove. (11). In the result, the Petition is allowed.