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2017 DIGILAW 259 (JK)

Madhu Kishwar v. Syed Shujaat Bukhari

2017-05-24

JANAK RAJ KOTWAL

body2017
JUDGMENT : Janak Raj Kotwal, J. 1. This motion under Section 526 of the Code of Criminal Procedure (for short, the Code) has been laid by the accused for transfer of a criminal complaint under Section 500 RPC filed against her by the respondent in the court of the Chief Judicial Magistrate (CJM), Srinagar from that court to any other court at Jammu. In the complaint filed by him, the respondent claims to be the Editor-in-Chief of an English daily, namely, 'Rising Kashmir' published from Srinagar. He alleges to have been defamed by the petitioner by the two defamatory and libelous statements posted by her on her Twitter handle, one on 30.07.2016 and the other on 02.12.2016. 2. It is contended by the petitioner, which is evident from Annexure-B to this petition, that the CJM vide order dated 03.12.2016 in the first instance issued bailable warrant against the petitioner for her attendance before the court on 24.12.2016 without, however, assigning any reason in terms of Section 90 of the Code for not issuing the summons. The petitioner caused her appearance before the court through her counsel on 28.01.2017 and filed an application for her permanent exemption from personal appearance before the court and to be represented through her counsel. She relied upon the Judgment of the Supreme Court in Bhaskar Industries Limited vs. Bhiwani Denim and Apparels Limited and Others, (2001) 7 SCC 401 . The learned CJM disposed of the application vide order dated 20.03.2017 providing that the petitioner will be exempted from her personal appearance permanently after she will surrender before the court on the next date of hearing, will furnish bail bonds to the satisfaction of the court and will also furnish an undertaking to the effect that a counsel on her behalf would be present in the court, she will not dispute her identity, will have no objection in taking evidence in her absence and will appear before the court personally in case her statement is needed to be recorded in terms of Section 342 of the Code at a later stage. 3. After the disposal of her application for permanent exemption by the learned CJM vide order dated 20.03.2017, the petitioner has laid this motion for transfer of the case to a court at Jammu. Respondent has filed objections to this application resisting the transfer. 4. The submissions of the counsel for the petitioner, Mr. 3. After the disposal of her application for permanent exemption by the learned CJM vide order dated 20.03.2017, the petitioner has laid this motion for transfer of the case to a court at Jammu. Respondent has filed objections to this application resisting the transfer. 4. The submissions of the counsel for the petitioner, Mr. Sunil Sethi, learned Senior Advocate, mainly revolved around two grounds for transfer of the case from Srinagar to a court at Jammu; firstly, the old age and ill health of the petitioner and secondly, the petitioner's apprehension that she may not get fair trial before any court in Kashmir valley, having regard to the nature of the tweets for which she is being prosecuted, the surcharged atmosphere in Kashmir valley posing threat to her safety and security and the manner in which learned CJM is conducting proceedings in the case. Learned counsel argued that the petitioner is an old and sick lady, aged 66 years and is suffering from multiple ailments and has undergone a major surgery for removal of a big tumor from her pituitary gland. Learned counsel argued further that the tweets said to have been posted by the petitioner expose her views against entire Media Community operating from Kashmir and her courage to take issue against militants, which may not be liked by the cross section of people in Kashmir and will pose threat to her safety and security in the surcharged atmosphere of Kashmir valley in case she visits Srinagar to face trial before the learned CJM. For the same reason, she may not get any support and protection from the State administration and the services of a counsel there, especially when a brother of the respondent is a sitting Minister in State Government. Learned counsel submitted further that the petitioner's apprehension of not getting fair trial at Srinagar is supported by the manner in which the learned CJM issued bailable warrant against the petitioner in the first instance, though the summons should have been issued and has compelled her appearance in the court at Srinagar ignoring the clear verdict of law laid down by the Supreme Court in Bhaskar Industries Limited (supra). Learned counsel argued that fair trial in a criminal case is fundamental right of a citizen and whenever there is slightest doubt that accused may not get fair trial, higher courts should step in to take remedial measures, which in this case can be taken by transferring the case from Srinagar to a Court at Jammu. Learned Senior Advocate cited Surinder Partap Singh vs. State of U.P. and Others, (2010) 10 SCC 475 and D.R. Bhatti vs. State of Punjab, AIR 1987 SC 660 . 5. Per contra, learned counsel appearing on behalf of the respondent, Mr. Syed Faisal Qadri, Advocate, in his counter to the plea of ill health and old age of the petitioner argued that there should be no difficulty in visiting Srinagar on this score if the petitioner opts to visit Jammu. Learned counsel further argued that the threat perception set out on behalf of the petitioner is an afterthought and figment of imagination developed after disposal of the application for permanent exemption inasmuch no such plea was taken in that application. In regard to the submission relating to brother of the respondent, learned counsel submitted that the said brother of the respondent is Minister in the Government of the entire State of Jammu and Kashmir and not restricted to Kashmir Division only so the allegation that he may exercise any influence in favour of his brother if the case is tried at Srinagar is again a figment of imagination. Learned counsel also supported the action of the learned CJM in issuing the arrest warrant in the first instance and asking the petitioner to appear before the court once before her permanent exemption stating also that redressal of any grievance on this score should have been sought by approaching higher forum and is not a valid ground for seeking transfer of the case from that court. Learned counsel cited two judgments of Supreme Court in Mrs. Maneka Sanjay Gandhi and Another vs. Miss Rani Jethmalani, AIR 1979 SC 468 and Abdul Nazar Madani vs. Mohammed Ansari and Others, AIR 2000 SC 2293 . 6. Learned counsel cited two judgments of Supreme Court in Mrs. Maneka Sanjay Gandhi and Another vs. Miss Rani Jethmalani, AIR 1979 SC 468 and Abdul Nazar Madani vs. Mohammed Ansari and Others, AIR 2000 SC 2293 . 6. Before taking up the rival submissions on their merits, I may first refer to the case law cited by the learned counsel on both sides in order to keep in mind the principles emerging therefrom: (a) In Surinder Partap Singh's case (supra), one of the accused persons against whom charge sheet was filed in FIR No. 19 of 2005 was sitting MLA in the State of Rajasthan. Supreme Court, having regard to this fact and the circumstances in which the alleged incident had taken place, transferred the case from the State of Rajasthan to the State of Utter Pradesh observing that "there is no getting away from the fact that the respondent No. 2 is an MLA and that too belonging to present dispensation" so justice must not only be done but must also seem to be done. In D.R. Bhatti's case (supra), the Supreme Court, having regard to the material placed before the Hon'ble Court, allowed transfer of a criminal case from a court in Ludhiana to a court at Una in the neighboring State of Himachal Pradesh, having regard to the facts that one of the accused was a highly placed Police Officer in the State of Punjab and was associate with a number of ant-militancy operations in Punjab including the arrest and interrogation of Shri Bhindranwala. (b) In Mrs. Maneka Sanjay Gandhi's case (supra) transfer of a case of defamation from Bombay to Delhi was sought on the ground that the accused-Editor will suffer substantial prejudice, non-availability of competent legal service and absence of congenial atmosphere for a fair and impartial trial. Learned three-judge Bench of the Supreme Court has observed in this case in para 2 of the reporting: "2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case....." (c) In Abdul Nazar Madani's case (supra), transfer of a bomb blast case was sought by the accused from a court in the State of Tamil Nadu to a court in the State of Kerala allegedly on the ground of there being no possibility of fair trial in State of Tamil Nadu due to surcharged communal atmosphere and likelihood of not getting proper legal assistance. Supreme Court, however, refused the transfer observing that nothing was placed on record as to inability of the State Government to ensure free, fair and in partial trial and observing that the accused were already represented by lawyers and their plea that no patriotic lawyer would appear and plead for them was illusory. 7. I find substance in the submission of the learned counsel for the respondent against the plea relating to the old age and ill health of the petitioner in view of her readiness to attend a court at Jammu as in no manner there is any practical difference in attending a court at Jammu or a court at Srinagar for a person coming from Delhi, particularly when it is not stated that she would be travelling by road and cannot afford to travel by air. Likewise, I find no substance in the plea relating to the assumed undue influence of the brother of the respondent, a Minister in the State Cabinet, which is speculative and conjectural and not supported by any material, whatsoever. It is beyond comprehension as to how a Minister in the State Government can influence the juridical process. A general practice of transferring cases of the relatives of the persons in authority from one place to another is unknown to the system. It is beyond comprehension as to how a Minister in the State Government can influence the juridical process. A general practice of transferring cases of the relatives of the persons in authority from one place to another is unknown to the system. The Surinder Pratap Singh's case (supra) relied upon by the learned counsel for the petitioner does not lay down a general principle in this regard. That apart, I find substance in the submission of learned counsel appearing on behalf of the respondent that the brother of the respondent is the Minister of entire State of Jammu and Kashmir so seeking transfer on this score from one place to another in the same State is a self-contradictory plea. 8. The only ground left for consideration of this court, therefore, is whether the petitioner is not likely to get fair trial in a court at Srinagar for the other reasons demonstrated by the learned Senior Advocate appearing on her behalf. 9. On reading the transfer application on hand in juxtaposition with the application for exemption from personal appearance before the Court moved on behalf of the petitioner before the learned CJM, a copy whereof is annexed to the objections filed on behalf of the respondent, it is evident that the petitioner would have had no problem in trial of the case by the court of learned CJM, Srinagar had she been granted permanent exemption without asking her to appear before the court once. The apprehension of not getting fair trial at Srinagar and her pursuit for transfer of the complaint to a court at Jammu seems to have been actuated in the mind of the petitioner only after her application for permanent exemption was disposed of by the learned CJM vide the order dated 20.03.2017. 10. Perusal of the transfer application primarily and largely portrays petitioner's disappointment with the manner in which the learned CJM dealt with her application for permanent exemption from personal appearance before the court and in that interpreted the Supreme Court Judgment in Bhaskar Industries Limited (supra) coupled with the issuance of bailable warrant for her arrest in the first instance after taking cognizance in the complaint. The petitioner in addition, however, has stated the facts, which, according to her, were the reasons for seeking her permanent exemption from appearing before the trial court in person. The petitioner in addition, however, has stated the facts, which, according to her, were the reasons for seeking her permanent exemption from appearing before the trial court in person. She has contended also that in the continuing surcharged atmosphere in the Kashmir valley, especially in Srinagar, the safety and security of the petitioner would be in serious jeopardy and forcing her to appear before the court at Srinagar is likely to pose a serious threat to her life. It is contended further that the news reports and editorials of the newspaper edited by the respondent shows that he is sympathizer and supporter of separatists and militants, especially given his political clout and close links with militant groups, so it is reasonable for the petitioner to apprehend that forcing her to go to Srinagar is to put her life and limb at risk. 11. It is noticed that the aforementioned facts, which according to the petitioner were the reasons for seeking permanent exemption from personal appearance, besides her old age and bad health, had not been pleaded in the application for permanent exemption moved on her behalf before the learned CJM. Perusal of that application, copy whereof is annexed to the objections filed on behalf of respondent, would show that the petitioner had sought permanent exemption on the ground of her old age and bad health only having undergone a major surgery and the reliance was place upon the Supreme Court Judgment in Bhaskar Industries Limited (supra). This supports my view, expressed herein above that the apprehension of not getting fair trial and the idea of filing application for transfer of the case to a court at Jammu seems to have been actuated in the mind of the petitioner only after her application for permanent exemption was disposed of by the learned CJM vide the order dated 20.03.2017 coupled with the fact that learned CJM had issued bailable warrant for her arrest in the first instance after taking cognizance in the complaint. This is evident from some averments made in the transfer application which have been noticed. 12. It is pleaded in the transfer application (para 10) that "the petitioner is willing to face the proceedings in the complaint within her legal rights but the least she expects and wants is a fair trial. This is evident from some averments made in the transfer application which have been noticed. 12. It is pleaded in the transfer application (para 10) that "the petitioner is willing to face the proceedings in the complaint within her legal rights but the least she expects and wants is a fair trial. Given the manner in which this case has, thus, far proceeded, it is apparent that fair trial is not possible at Srinagar." It is contended further that "the manner in which the bailable warrants were issued by the ld. Magistrate in the first instance instead of summons which were the more appropriate measure in the case, as also the manner in which the plea for exemption for personal appearance by the petitioner has been set aside, is also supporting the apprehension of the petitioner that fair trial in the said complaint at Srinagar is not possible." (para 11). She has, thus, pleaded that Jammu will be a neutral place for both petitioner as well as for respondent inasmuch as even the respondent is not likely to suffer in that case as only two witnesses have been cited in the complaint who can easily be produced at Jammu. Petitioner has also contended that "the majesty of law requires that a free, fair and reasonable trial should be held and wherever bias or hostile atmosphere is found, the party concerned is well within his/her rights to seek transfer of the proceedings." 13. In the scenario emerging in the background stated above, contention that appearing before a court at Srinagar will pose threat to the safety and security of the petitioner or that she may not get fair trial and appropriate legal assistance at Srinagar cannot be accepted. The courts in Kashmir valley, more so in Srinagar city, are functioning normally and quality legal assistance is available. The lawyers' fraternity in Kashmir valley especially at Srinagar are rendering their professional services and there is no difficulty in engaging out station lawyer also. There is no material or reasonable ground to approve the petitioner's worry that expression of her views about functioning of the media in Kashmir has caused security risk to her in entering the valley, especially the Srinagar City. 14. There is no material or reasonable ground to approve the petitioner's worry that expression of her views about functioning of the media in Kashmir has caused security risk to her in entering the valley, especially the Srinagar City. 14. Apprehension of the petitioner arising from the manner in which the proceedings in the case have been conducted by the learned CJM, however, deserves consideration as I find a reason to say, precisely, that the learned CJM in disposing of the application for permanent exemption of the petitioner has interpreted the judgment of the Supreme Court in Bhaskar Industries Limited supra in a manner so as to pave way for compelling petitioner's personal appearance before the court before she is granted permanent exemption. In that process the learned CJM seems to have felt the necessity of justifying the issuance of bailable warrant against the petitioner and not the summons in the first instance, which otherwise was out of context, while dealing with the application for exemption. 15. I may first point out as to how the learned CJM, while dealing with the application for exemption, has justified the issuance of bailable warrant against the petitioner (accused) in the first instance in order to exclude the application of Section 205 of the Code, which empowers the Magistrate to dispense with the personal appearance of the accused and permit him to appear by his pleader in a case where on taking cognizance in a case the Magistrate in terms of Section 204 issues summons for causing the accused to appear before him. The view expressed by the learned CJM is that the cognizance having been taken for an offence under Section 500. [500. Punishment for defamation - Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both]. RFC, only warrant could have been issued under Section 204 in view of the fourth column of the Second Schedule to the Code. Learned CJM, therefore, excluded the application of Section 205 of the Code to the application for permanent exemption filed by the petitioner holding that Section 205 [205. Magistrate may dispense with personal attendance of accused] (1) Whenever a Magistrate issue 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. Magistrate may dispense with personal attendance of accused] (1) Whenever a Magistrate issue 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 is attracted only when summons is issued by the court. Relevant portion of the order passed by the learned CJM is culled out: "the complainant has moved before this Court with a complaint under section 200 Cr.P.C. for commission of offence by the accused under section 500 RPC in which the Court has taken cognizance under Section 500 RPC against the accused and due to the fourth column of second schedule a warrant was issued. Under Section 204 there can be two types of issuance of process. In summons cases the court can issue summons for attendance of accused and in some of the cases as per second schedule the Court has to issue warrants. Now the question arises as to whether exemption can be given at the first hearing under Section 205 Cr.P.C. or can be given under Section 540(A) Cr.P.C./317 of the Central Criminal Procedure Code. It is deemed proper to read Section 205(a) of Criminal Procedure Code. The said section reads as under:- Whenever a Magistrate issues a summons he may if he see reasons so to do dispense with the personal attendance of the accused and permit him to appear by his pleader. This section reveals that whenever Magistrate has issued the summons and accused moved an application for exemption of personal attendance then the court should allow the application and dispense with the personal appearance of such accused against whom summons have been issued. As in the present case court has issued the warrants because as per IV column of second Schedule at the first instance under sections 499, 500 RPC summons cannot be issued but on the other hand warrants have to be issued. Therefore section 205 Cr.P.C. is not applicable to the present case." (Underlining by me) 16. As in the present case court has issued the warrants because as per IV column of second Schedule at the first instance under sections 499, 500 RPC summons cannot be issued but on the other hand warrants have to be issued. Therefore section 205 Cr.P.C. is not applicable to the present case." (Underlining by me) 16. The view taken by the learned CJM clearly is that if column-IV of the Second Schedule to the Code provides for issuance of a warrant against the accused in the first instance after taking the cognizance, in that case only 'warrants have to be issued' and 'summons cannot be issued'. The view taken by the learned CJM is patently erroneous and the learned Judge can be said to have taken lopsided view of an important legal provision. Such a view having been taken by a senior Magistrate holding the post of CJM in the principal City of Srinagar is not appreciable indeed. The legal position in this regard needs to be stated and explained. 17. Section 190 of the Code provides for taking of cognizance of offences by the Magistrates. A CJM or a specially empowered Judicial Magistrate can take cognizance of an offence on a complaint lodged by any person (commonly known as private complaint) or on a report in writing lodged by any police officer (commonly known as police charge-sheet/challan). Another source of taking cognizance is the receipt of an information from any person other than a police officer or the own knowledge or suspicion of the Magistrate. Section 204 provides for issue of process against the accused if the CJM/Magistrate after taking cognizance on a private complaint or police charge-sheet is of the opinion that there is sufficient ground for proceeding for commission of an offence against the accused. Sub-section (1) of Section 204 is important and is reproduced: "204. Issue of process (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. Issue of process (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons; for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction." (Underlining by me) 18. On a plain look at Sub-section (1) of section 204 of the Code, it would not be correct to say that the Magistrate is bound to issue warrant only in a case where accused is to be proceeded against for the commission of an offence in which according to the fourth column of the Second Schedule warrant can be issued in the first instance. Even in such a case the Magistrate, if he thinks fit, can issue summons. Since the learned CJM has justified the issuance of bailable warrant against the petitioner in the first instance on the anvil of the fourth column of the Second Schedule, the said column is required to be referred to. Heading of the fourth column reads: "Whether a warrant or a summons shall ordinarily issue in the first instance." This heading read with Section 204(1) would make it clear that even though in such a case ordinarily warrant should be issued in the first instance but summons may also be issued in a case, which in the opinion of the Magistrate is fit for issuing summons. It may contextually be stated that the Magistrate is not even bound to issue summons only in a case where according to the fourth column of the Second Schedule summons should be issued in the first instance in view of the provision contained in Section 90 of the Code, which empowers the Magistrate to issue warrant in lieu of, or in addition to the summons for the reasons to be recorded by the Magistrate in a situation as contemplated under that section. 19. 19. Learned CJM, therefore, is not correct in taking the view that the court, having taken cognizance for offence under Section 500 RPC, could have issued warrant only and summons in such a case cannot be issued. Inapt understanding and lopsided view about this fundamental provision of law appears to be the reason for the learned CJM issuing bailable warrant against the old lady even though the purpose could have been well served by issuing summons in the first instance. Inapt understanding of such basic principles of law by the Magistrates, particularly by a senior Magistrate holding the post of CJM is disturbing indeed. 20. The next and the important question arising in this regard is whether the learned CJM has dealt reasonably with the application for permanent exemption moved on behalf of the petitioner. This question assumes importance also in the context that the learned CJM was not of the view that no case for permanent exemption of the petitioner was made out or that the petitioner was not entitled to such exemption. The learned CJM rather has allowed the exempted but with a rider that the petitioner shall first surrender before the Court and furnish her bail bonds to the satisfaction of the court, an undertaking to the effect that she will not dispute her identity in the case, her counsel would be present in the court, she will have no objection in taking evidence in her absence and will appear before the court in case need arises for recording her statement under section 342 of the Code. 21. The order dated 20.03.2017 (supra) needs to be tested on the touchstone of the Supreme Court judgment in Bhasker Industries Limited (supra), which incidentally has fact situation identical to the case on hand. In that case a complaint under section 138 Negotiable Instruments Act was filed before a Judicial Magistrate at Bhopal against a company, as the first accused, its Managing Director, as the second accused and the other persons associated with accused-company. On the notice being issued to him by the learned Magistrate, the second accused filed an application for exemption from personal appearance before the court. On the notice being issued to him by the learned Magistrate, the second accused filed an application for exemption from personal appearance before the court. He highlighted two factors, namely, that the offence under section 138 of the Negotiable Instruments Act is relatively not a serious offence inasmuch as the legislature has made it only a summons case and secondly that the insistence on the physical presence of the accused in the case would cause substantial hardship and suffering to him as he is a resident of Haryana. He contended that to undertake a long journey to reach Bhopal for his physical appearance in the court involves, apart from great hardships, much expenses also. He submitted also that advantages the court gets on account of the presence of the accused or far less than the tribulations the accused has to suffer to make such presence. The reliance was placed on section 317 of the Code of Criminal Procedure (section 540-A of the State Code). The Magistrate directed him to be present in the court for the purpose of furnishing security by executing of bond for Rs. 5,000/-. In the revision petition filed by the accused, learned Sessions court after recording submissions of the advocate for the second accused that he shall appear before the trial court on behalf of his client set aside the order passed by the Magistrate, however, without substituting with any other direction or order. A learned Single Judge of the High Court declined to interfere with the order passed by the Sessions court and the matter thus came up for consideration before the Supreme Court. The Supreme Court having regard to provisions of section 205(1) and 317 of the Code of Criminal Procedure held as under: "17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding with the case. We may point out that the legislature has taken care for such eventualities. Section 205(2) says that the magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, boils down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further." (Underlining by me) 22. In context of the facts of that case, the Supreme Court observed also that these are the days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. 23. The ratio of the judgment in Bhasker Industries Limited supra is too clear to entertain any scope or difficulty in understanding the same or calling for an interpretation by a court or Magistrate bound by the principle of following the precedent laid down by the Supreme Court. In any trial in a summons case the judge or the Magistrate in terms of section 540-A is empowered in an appropriate case to allow permanent exemption to an accused, if his personal appearance before the court is not necessary in the interest of justice and permit him to be represented through a counsel. The judge or magistrate in such a case can allow exemption from personal appearance to the accused even on the first hearing before the court and can record the plea of the accused through his counsel. 24. The ratio of the judgment in Bhasker Industries Limited squarely applies to the case on hand both because of the principle of law stated therein and the similarity of the fact situation of the two cases. 24. The ratio of the judgment in Bhasker Industries Limited squarely applies to the case on hand both because of the principle of law stated therein and the similarity of the fact situation of the two cases. Like an offence under Section 138 of the Negotiable Instruments Act, the offence of defamation under Section 499 read with Section 500 RPC (IPC), especially when alleged to have been committed by use of print media, electronic media or social media, has inter-state ramification. It generally leads to prosecution at far off places and may involve old and sick persons and women. The offence of defamation is a summons case, being punishable with imprisonment not more than two years. Granting exemption to the accused from personal appearance before the court and recording his plea through his counsel, therefore, is permissible and practicable. Granting exemption in a fit case will rather help in expeditious disposal of the case more than by insisting upon the personal appearance of the accused before the court. 25. The petitioner in the case on hand admittedly is an old and sick lady. She is a resident of Delhi and certainly will feel inconvenience and difficulty in attending the trial at Srinagar involving lot of expenditure also. Even the learned CJM in his aforementioned order has felt the necessity of granting permanent exemption from personal appearance before the Court to the petitioner, though after appearing before the court for the purpose mentioned above. All the conditions for allowing permanent exemption from personal appearance to the petitioner starting from the first date of hearing and recording her plea under section 242 Cr.P.C. through her counsel in view of the aforesaid judgment of the Supreme Court were therefore, fulfilled so learned CJM should have allowed the application filed by her, subject, however, the conditions as provided under the said judgment. 26. 26. Learned CJM, however, entered into unrequired arena of interpreting the judgment of the Supreme Court, as discussed above and even taking the view that "plea of guilt of charge can be made by the accused personally or through his counsel" only in the cases of petty nature which are to be disposed of summarily and not in a case for which procedure for summons trial is provided under Section 242 to 249 of the Code and the accused is required to appear before the court for recording his statement under Section 242. Drawing any distinction between a case to be tried by the procedure provided for trial of summons cases and a case involving commission of petty offences to be disposed of summarily under Section 260 of the Code was totally out of context. It having been clearly held by the Supreme Court in the aforementioned judgment that exemption and even recording of plea through counsel is permissible in summons case, question of drawing distinction between summons trial and summary trial does not arise. It, however, needs to be pointed out that in terms of Section 262 of the Code procedure for summons and warrant cases is applicable even in the summary trial in the cases contemplated under Section 260. Compelling the accused to appear before the court for furnishing bail bonds or the undertaking in a case where a case found fit for permanent exemption starting from the first date of hearing would defeat the ratio of the judgment rendered by the Supreme Court in Bhaskar Industries Limited (supra). 27. For all that said and discussed above, while finding no good ground for transferring the case from Srinagar to a Court at Jammu, the case is fit for granting the petitioner permanent exemption from personal appearance before the court and recording her plea under Section 242 through the counsel duly engaged by her. 28. Viewed thus, prayer for transfer of the case from Srinagar to a Court at Jammu is rejected. However, in exercise of the inherent jurisdiction of this Court under Section 561-A of the Code, order dated 20.03.2017 passed by the learned CJM is modified to the extent that the trial court shall not insist upon personal appearance of the petitioner before the court, shall record her plea under Section 242 and shall accept her undertaking and the bail bonds through her duly appointed counsel. It shall, however, remain open for the trial court to order for personal appearance of the petitioner before the court in terms of Section 540-A (2) of the Code, whenever her personal appearance is found necessary for the reasons to be recorded in future. Application is disposed of accordingly.