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Kerala High Court · body

2002 DIGILAW 14 (KER)

Alice George v. Deputy Superintendent of Police

2002-01-10

R.BASANT

body2002
Judgment :- 1. Is it possible for the system to clean up the corridors of our criminal courts by removing the dissatisfied, disgruntled and frustrated crowd of complaints, accused persons and witnesses who throng there unnecessarily? Is it possible to usher in a user - friendly and optimum - productivity ambience in those court rooms ? These questions of seminal importance do arise for consideration in this Criminal M.C. where the precise and specific question raised is not very crucial or vital. 2. This petition is filed under S.482 of the Code of Criminal Procedure. The petitioner is the 9th accused in C.C.102/99. She faces indictment under S.420 read with S.34 of the Indian Penal Code along with many others. Some co-accused have not entered appearance so far. There are three identical cases. The petitioner is allegedly a sleeping/non-active partner of a partnership firm. The firm is a financial concern. The alleged offence has been committed by the partners of the firm against one of its customers in respect of a cheque for Rs. 20,000/-. At the request of the petitioner the three cases were being posted on the same dates. On 31.10.2000 when one of the cases was called (C.C.102/99) the petitioner and her counsel were absent. There was no representation. The court thereupon issued nonbailable warrant against the petitioner under the impugned order. 3. The petitioner's counsel Sri. Chandy Joseph submits that the petitioner had apprised him of her inability to appear. He had hoped to be present at the Additional Chief Judicial Magistrate's Court at 11 A.M. after finishing his work at the High Court which commences sitting at 10.15 A.M. After finishing his work at the High Court he rushed to the Additional Chief Judicial Magistrate's Court. But there was such a big crowd thronging the court that he could not find his way into the court in appropriate time to make a representation when C.C.102/99 was called. By the time the next case was called he was present and he filed application to excuse the absence of the petitioner. Though at the end of the calling work he made representation in the court, the learned Magistrate did not consider the said representation. 4. The petitioner is afraid to surrender before the learned Magistrate. By the time the next case was called he was present and he filed application to excuse the absence of the petitioner. Though at the end of the calling work he made representation in the court, the learned Magistrate did not consider the said representation. 4. The petitioner is afraid to surrender before the learned Magistrate. Non bailable warrant having been issued, the petitioner apprehends that the learned Magistrate would insist that the petitioner must remain in custody at least for one day before her application for bail is considered. Such a practice is in vogue in some courts, it is submitted. Absence of the petitioner and her counsel before the court on 31.10.2000, when the case was called, was absolutely unintentional and not deliberate. In these circumstances order dated 31.10.2000 in C.C. No. 102/99 directing issue of non-bailable warrant against the petitioner may be set aside invoking powers under S.482 Cr.P.C., it is prayed. 5. Records have not been called for. I accept the submissions made by the learned counsel Sri. Chandy Joseph at the bar. I am shocked to hear that some of the subordinate criminal courts follows the unreasonable practice of insisting that an accused who surrenders must remain in custody at least for a day before his application for bail is considered and appropriate orders passed. I wish that these submissions were incorrect and only exaggerations or over simplified generalisations. I have no hesitation to express firmly that such a practise is inhuman and unjust. Every application for bail by an accused who surrenders in a pending case must be considered expeditiously and orders passed on the dates of such application. Unless compelling reasons are there orders on merits must be passed on such applications on the date of surrender itself. Such applications must of course be filed with prior notice to the respondents, wherever necessary. 6. In the facts and circumstances revealed in this petition, I have no hesitation to opine that the petitioner must resort to the ordinary, regular and proper course of surrendering before the learned Magistrate. She must explain to the learned Magistrate the circumstances under which she happened to be absent without representation. I have no reason to assume that the learned Magistrate shall not consider the application for bail on merits on the date of surrender itself. I am satisfied that this Criminal M.C. can be dismissed with this observation. She must explain to the learned Magistrate the circumstances under which she happened to be absent without representation. I have no reason to assume that the learned Magistrate shall not consider the application for bail on merits on the date of surrender itself. I am satisfied that this Criminal M.C. can be dismissed with this observation. It is not expedient or necessary for this Court to invoke the powers under S.482 Cr.P.C. to quash the impugned order. 7. Before parting with this case I must mention that the facts revealed are disturbing. So notoriously inadequate is the infrastructure of space and conveniences available in the subordinate criminal courts that appearance before the courts is itself harassment and vexation not only for the accused persons but also for the complainants and witnesses, who have the misfortune to frequent the corridors of the criminal courts. It is shocking to see the crowds that throng in our subordinate criminal courts where persons do not have adequate space even to stand. The fact scenario revealed in this case is not something uncommon to a person having grass root experience with the criminal adjudicatory system. Our courts insist on personal appearance of the accused persons and the complainants on all dates of posting. In criminal cases the courts do in a routine manner and mechanically post the cases 'formality' once a month or once in every two or three months. This obliges the accused and the complainants to appear in courts personally on all dates of posting. Whatever be the purpose of posting, insistence on the personal presence of the accused and the complainant is religiously made. Often a complainant or the accused finds it difficult to wade his way through the crowd into the court hall. If he does not reach the court hall in time, he faces the prospect of his complaint being dismissed under S.256 of the Code of Criminal Procedure or non-bailable warrant being issued against him. If he finds his way into the court, on such dates of 'formal posting' "the presiding officer only notes the presence of parties and adjourns the case to another date of formal posting. The story repeats on such day also. If he finds his way into the court, on such dates of 'formal posting' "the presiding officer only notes the presence of parties and adjourns the case to another date of formal posting. The story repeats on such day also. In'heavy' courts, this so-called calling work, which is really no work at all, consumes the substantial portion of the judicial time available - mostly and invariably the prime time in the morning when a lot of meaningful work can normally be done. For strange and obscure reasons, this unhealthy practice has been going on in our subordinate criminal courts. 8. I am unable to understand why the presence of the complainant should be insisted on every date of posting. S.256 of the Code of Criminal Procedure does not according to me oblige the court to insist on personal appearance of the complainant on all dates of posting. I am unable to understand what provision of law or principle of orderly procedure is offended if the complainant is permitted to be represented on all dates of posting through his counsel and insistence is made on his personal presence only on days when the progress of the case requires his presence. The enabling permissive stipulation in S.256 Cr.P.C. does not according to me justify the insistence that the complainant must be present personally on all dates of posting. The expression "shall" in S.256 Cr.P.C., which I extract below, read and understood in the light of the totality of stipulations and in the light of binding precedents is not mandatory in nature and it is not necessary for courts to dismiss the complaint if it is found that the complainant is not personally present. S. 256: Nonappearance or death of complainant - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-s. (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death." 9. It must be the duty of the system to ensure that it is user friendly. When adequate infrastructure/ convenience are not available, liberal and purposive interpretation has to be resorted to. I am of the opinion that the practice of insisting on the physical appearance of the complainant on all dates of posting must forthwith be discontinued. He must be permitted to be represented by his counsel on all days of posting (even without an application to condone his absence) except on dates where there is a specific direction to him to appear. Such direction must be issued only if the progress of the case - or any other reason, justifies such insistence. 10. Let us now leave the complainant and come to the accused. Counsel were requested to bring to my notice any provision of law which insists that the accused must be personally present before the criminal court on all dates of posting. It is true that such a practice is in vogue. But is it necessary to continue such a practice? Is there any support in the Code for such insistence? At least is it possible to adopt an interpretation which would dispense with such personal presence of the accused on all days of posting? What provision of the statute or precedent or principle of law obliges such physical presence? Is it possible to clean up the corridors of the criminal courts by adopting a very humane interpretation/ practice? Cannot the precious time of the court be utilised for more purposeful and productive endeavours than merely calling a case at periodical intervals to verify the presence of the accused and the complainant and to adjourn the case to some other dates formally? 11. I am of the opinion that the system needs to address itself to these concerns with expedition. Counsel were requested to assist the court. All other counsel who thought that they will be of any useful assistance were also permitted to enlighten the court. 12. I have scanned through the entire Code of Criminal Procedure assisted by counsel to trace the provision which obliges the accused to appear in court personally on all dates of posting. Counsel were requested to assist the court. All other counsel who thought that they will be of any useful assistance were also permitted to enlighten the court. 12. I have scanned through the entire Code of Criminal Procedure assisted by counsel to trace the provision which obliges the accused to appear in court personally on all dates of posting. S.273 of the Code mandates that all evidence taken in the course of trial or other proceedings shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader. This perhaps is the only provision which specifically requires or insists on the personal appearance of the accused before the court - that too only when evidence is taken in the course of trial or other proceedings. It is certainly not necessary under S.273 of the Cr.P.C. to insist on such personal appearance of the accused on other dates of posting. I extract S.273 Cr.P.C. below for the purpose of easy reference. "273. Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Explanation.- In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code." 13. My attention is next drawn to S.205 and 317 Cr.P.C. By necessary implication the accused has to appear before court on all days of posting, it is suggested. I extract below both sections. "205. Magistrate may dispense with personal attendance of accused.- (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 the manner hereinbefore provided." "317. (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 the manner hereinbefore provided." "317. Provision for inquiring and trial being held in the absence of accused in certain cases.- (1) At any stage of an inquiry 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, or that the accused persistently disturbs the proceedings in court, 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 subsequently 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." Under S.205 even at the time of issuing the summons personal attendance of the accused can be dispensed with and he can be permitted to appear by his pleader, subject to the powers of the Magistrate later, at any stage, to insist on his presence. It is by now trite that a direction under S.205 can be issued even after the issue of summons and or after appearance of the accused in court. To me it appears that S.205 is to be read only as a rider to S.273 Cr.P.C. where personal presence of the accused is insisted. Similarly S.317 Cr.P.C. which I have extracted above permits the judge or the Magistrate to dispense with the personal attendance of the accused before court. It is impossible from S.317 Cr.P.C. also to spell out a requirement that the accused must be personally present before the court on all dates of posting. Both S.205 and 317 have to be read as a rider/proviso of S.273 Cr.P.C. which insist on the personal presence of accused before court when evidence is recorded in trial or other proceedings. It is impossible from S.317 Cr.P.C. also to spell out a requirement that the accused must be personally present before the court on all dates of posting. Both S.205 and 317 have to be read as a rider/proviso of S.273 Cr.P.C. which insist on the personal presence of accused before court when evidence is recorded in trial or other proceedings. Neither S.205 nor S.317 can persuade me to spell out an implied rigid insistence on the personal presence of the accused on all dates of posting. 14. My attention has been drawn to Form No. 45 in Schedule II of the Code of Criminal Procedure. It is the stipulated Form of bond/bail bond. There is a stipulation therein "that the accused shall attend such court on every day on which trial is held with regard to such charge. The expression "trial" in Form 45 must be read consistent with S.273 Cr.P.C. and must, when read reasonably, exclude days on which the personal appearance of the accused is not necessary for the progress of the case and days on which the appearance of the accused is exempted under S.205 or S.317 of the Cr.P.C. The expression "trial" generally, I am conscious, would take in all proceedings between the framing of charge/reading over of particulars of offence and the ultimate acquittal/ conviction. But in the present context and for the present purpose the expression 'trial' in Form 45 must certainly be read down to mean a stage of the proceedings where personal presence of the accused is necessary before court under S.273 Cr.P.C. or otherwise. 15. It is contended that there is an implied condition/ stipulation which obliges/ mandates the courts to insist on personal appearance of the accused on all dates of posting in a criminal trial. I am prepared to concede that such a practice is in vogue. But the earlier we dispense with such a requirement, the better for the system in its quest for expedition and user friendliness. Criminal adjudicatory process has to be reasonable, if it is cater to the requirements of due process in Art.21. To me, it appears that it would be very unreasonable to insist mechanically on such presence of the accused and the complainant on all dates of posting unless the court finds a need or purpose or requirement for such insistence. S.273 is one such instance where such insistence would be permissible. To me, it appears that it would be very unreasonable to insist mechanically on such presence of the accused and the complainant on all dates of posting unless the court finds a need or purpose or requirement for such insistence. S.273 is one such instance where such insistence would be permissible. There may be myriad circumstances under which such insistence would be justified. The discretion of the court to meet the exigencies of the situation must certainly be preserved. But mechanical and ritualistic insistence on personal presence of the accused and the complainant on all dates of posting irrespective of the nature and purpose of the posting cannot certainly be permitted or tolerated. It is unreasonable. It is irrational. 16. If such insistences were not made, the accused will not be available for trial and may abscond, it is contended. Normally in the Kerala scenario a criminal case comes up for trial only after 1 or 2 years after commencement of proceedings. It would be unwise, imprudent and unreasonable to insist on personal appearance of the accused once a month or in 2 to 3 months on all dates prior to commencement of evidence. Such insistence will certainly not ensure the personal presence of the accused when the case is posted for trail. It would be sufficient if the accused were represented by counsel on such dates of formal posting when no evidence is likely to be adduced and there is no special necessity to insist on such personal appearance. 17. In most of the criminal cases unmerited acquittals result and the only sufferance of such accused who secure unmerited acquittal is the travails of a criminal trial, it is contended. I would straight away dismiss this approach as it is not, and cannot be, the intention of the system to make a person endure the trauma of appearance in court even if he is ultimately acquitted whether merited or unmerited. Infliction of such trauma would not be humane or reasonable. This theory does not also justify the insistence on personal presence of the indictees on all dates of posting. 18. The plight of the trial lawyer may not be ignored, it is urged, it would hurt his interests if the complainant/ accused is not obliged to appear in court, it is submitted. The lawyer would have no control over his client. 18. The plight of the trial lawyer may not be ignored, it is urged, it would hurt his interests if the complainant/ accused is not obliged to appear in court, it is submitted. The lawyer would have no control over his client. Necessary instructions and assistance from the client will not be available from time to time, it is pointed out. It would enhance the burden of responsibility of the lawyer as he will have to be present in court to represent his client. Courts may not ignore the interests of counsel, it is urged. I am unable to accept this contention also. I may not have adverted to this aspect at all but for the concern and earnestness with which this aspect was highlighted at the bar. The fact that the personal presence of the accused is not insisted on all dates of posting in court, does not at all affect the obligation of the accused to instruct his lawyer from time to time. If he has no instructions from the accused and is not aware of the whereabouts of the accused, a counsel would certainly be justified in reporting no instructions whereupon the court would certainly take necessary steps for enforcing the personal appearance of such an accused, who is not present and is not represented by his counsel. The interests of the lawyer cannot be a crucial consideration at all in this context. The system exists not for the lawyer or the judge but for the polity-to ensure justice to them. Judges should earn (and the bar must confer on them) the priceless asset of approval and affection, by their sense of justice, courtesy and hard work and not by populist procedures, decisions or interpretations. The argument that if such insistence on personal appearance of the accused/ complainant on all dates of posting is not made, the interests of the lawyer would be jeopardized cannot be accepted. 19. We shall now consider the plight of witnesses. I do find merit in the criticism that the courts and counsel take witnesses for granted. The form of summons in Form No. 33 Cr.P.C. does direct the witness to appear before court at 10 O'clock in the forenoon and not to depart thence without the leave of the Court. Do not courts have a duty to plan their work? I do find merit in the criticism that the courts and counsel take witnesses for granted. The form of summons in Form No. 33 Cr.P.C. does direct the witness to appear before court at 10 O'clock in the forenoon and not to depart thence without the leave of the Court. Do not courts have a duty to plan their work? Do not witnesses have the right to be told the precise time at which they should appear? If the courts would take up their examination only in the afternoon session, should the witnesses come at 10 O'clock and wait till the end of the day? Cannot the courts at least summon the witnesses specifying whether their presence is required in the Forenoon or Afternoon session? Is it not possible for the courts to treat the witness - the 'eye and the ear' through which the courts perceive the truth, with some more courtesy, concern and humanity? Do they not deserve a fairer deal? The sooner a user friendly system addresses itself to such questions, the better for it. 20. My attention has been drawn to the decisions reported in Mathew v. State of Kerala (1986 KLT 128) Helen Rubber Industries v. State (1972 KLT 794), (1981 KLT SN 65) and Basavaraj R. Patil v. State of Karnataka (AIR 2000 SC 3214) etc. All these decisions, according to me, do point to the ideal criminal trail of tomorrow where ritualistic insistence on personal appearance of the accused and the complainant will not be made in the interests of expedition as well as that of avoiding unnecessary inconvenience and trauma for the indictee, the complainant and the witnesses. 21. I am, in these circumstances, of the opinion that while dismissing this Crl. M.C. with appropriate observations, specific directions must be issued to all criminal courts for strict compliance in future. Such directions are necessary to meet the immediate challenge of cleaning up the corridors of the criminal courts by excluding complainants and accused persons, whose personal presence is not necessary and to ensure that courts do get more time to engage themselves in more productive and purposeful endeavours in a better and more conducive atmosphere. 22. In the result a) this Crl. 22. In the result a) this Crl. M.C. is dismissed with the observations in paragraph No. 6 above b) the following directions are issued for strict compliance by all criminal courts hereafter, i) All criminal courts small ensure that appearance of the accused in all cases before them is completed as expeditiously as possible after commencement of proceedings; ii) Once appearance is complete, parties shall immediately be heard and appropriate orders on charge shall be passed. The charge/ particulars of offence shall be read over and explained expeditiously after appearance. iii) Thereafter the case shall be listed for trial day-to-day and summons shall be issued to the witnesses. iv) If for any reasons such posting for trial cannot be given within one year the case shall be adjourned to a date (however distant) on which day a posting for day to day trial on a specified date/ dates can be made. v) There shall be no unnecessary formal posting of the case to any date. vi) The presence of the accused/ complainant shall not be ordinarily insisted on days when his presence is not required for the progress of the case. On all such dates the complainant/ accused shall be permitted to be represented by his counsel even without an application. vii) If there is no such presence/ representation by counsel, appropriate consequences can certainly follow - again in the judicious discretion of the court. viii) Specific direction shall be made in advance (while adjourning the case) by the court to the complainant/ accused through their counsel if their personal presence is necessary on the next date of posting. ix) The above directions shall not in any way affect the discretion of the court to direct personal appearance of the accused generally (or on any specific date of posting) for any particular purpose. x) No application under S.205/317 Cr.P.C. shall ever be rejected unless there are specific and compelling reasons. xi) As far as possible in summons issued to witnesses specific time for appearance shall be mentioned. Hereafter witnesses will at least be told in such summons whether they are expected to be present in the Forenoon (10.30 a.m.) or Afternoon (1 p.m.) session. xii) Cases posted for recording plea or S.313 questioning of the accused shall not be adjourned for the reason that the co-accused are not present. Hereafter witnesses will at least be told in such summons whether they are expected to be present in the Forenoon (10.30 a.m.) or Afternoon (1 p.m.) session. xii) Cases posted for recording plea or S.313 questioning of the accused shall not be adjourned for the reason that the co-accused are not present. Such work in respect of the available accused shall be completed and the case adjourned for such work in respect of the non available accused without insisting on the personal appearance of the available accused on such days. xiii) When the court commences its work for the day all accused who want to surrender before court shall be permitted to do so, and their applications for bail shall, unless it be impossible for any reason, be disposed of by the court on the same day before the court rises for the day. xiv) The Chief Judicial Magistrates/Sessions judges shall ensure that these directions are complied with by the subordinate courts and shall specifically advert to this aspect in the course of their inspections of subordinate courts. c) A copy of this order shall be communicated to all Subordinate Criminal Courts in the State for compliance.