w w w . L a w y e r S e r v i c e s . i n

Helen Rubber Industries Kottayam and Others V/S State of Kerala and Others.


    Decided On, 13 September 1972

    At, High Court of Kerala



Judgment Text

1. The refusal by the Learned District Magistrate, Ernakulam to exempt the personal attendance of the accused in some cases under the Companies Act that came before him has resulted in these revision petitions. The petitioners before me were proceeded against for non. submission of the returns and balance sheet for offences under sections 159-162, 614A, 220(1) and 220(3) of the Companies Act. Against most of them there are two cases for two separate offences. In all these cases, except one. they indicated their intention to plead guilty and receive sentence. The proper exercise of discretion in these cases, in the interests of justice and expeditious disposal of cases, would have been to exempt personal attendance of the accused, accept the plea of guilty and impose such sentence as the Court felt necessary in the circumstances of the case. The learned District Magistrate thought otherwise, Hence I am constrained to consider the question involved in some detail and lay down the procedure to be adopted in similar cases.

2. All the petitioners are Directors of their respective companies. Some of them are ladies and some old, residing in various parts of the State.

3. The provisions of the Criminal Procedure Code relevant for the disposal of these petitions are, Sections 205, 353 and 540A. It will be useful to extract these Sections.

205(1) Whenever a Magistrate issues a summons he may if he sees reason so to do dispense with the personal attendance of the accused, and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case may in his discretion at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided.

353. Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

540A. (1) At any stage of an enquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused befor

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e the Court is not necessary in the interests of Justice, the Judge or Magistrate may. if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or If the Judge or Magistrate considers his personal attendance necessary, he may. if he thinks fit. and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

These provisions give powers to Courts to exempt the personal attendance of accused. The question is how to exercise these powers. The general rule In criminal cases is that all inquiries and trials should be conducted in the presence of the accused, the principle underlying being that in a criminal trial the Court should not proceed ex parte against the accused person. Although this rule is for the protection of the interests of the accused, this does not mean that the accused has a right to absent himself from Court and that the Court should necessarily grant his prayer for exemption from personal attendance. Section 205(1) gives the Magistrate jurisdiction to dispense with personal attendance of the accused while issuing summons and the power to permit him to appear through his pleader. Sub-section (2) of section 205 authorizes the Magistrate to compel the attendance of the accused at any stage. This section read with Section 353 Cr.P.C. therefore clearly authorizes the Court to exempt personal attendance of the accused at any stage of the trial and confers upon the Court the power to compel attendance of the accused whenever the Court wants it. The policy of the Legislature in enacting this provision is to enable Courts to freely exercise this power in the interests of justice and for expeditious disposal of cases.

4. Before 1923 there was no provision in the Code except Section 205 to exempt personal attendance of the accused. It was then felt that the scope and extent of this provision was limited to the stage of commencement of the trial and when the Magistrate issued summons. There was a line of reasoning then that the power under Section 205(1) did not extend to exemption during trial. It was then understood that this power could be exercised only under the inherent power of Courts or under Section 353 Cr.P.C. In 1923 therefore Section 540A was added by the Amendment Act 18 of 1923. Under Sub-section (1) of that section, the trial Court was expressly conferred with power to grant exemption from personal attendance of the accused when there were two or more accused and when such accused is or are incapable of remaining before the Court at any stage of enquiry or trial. This section was construed to confer power on (the Magistrate to meet a special type of cases and under special circumstances. The scope and extent of the section as it, then stood was found to be Unduly narrow and the need to enlarge the powers of the Court in this respect in the interests of expeditious disposal of cases found expression among jurists. and lawyers. Therefore, Section 540A was amended as per the Amendment Act 26 of 1955 and a new Sub-section (1) was substituted which made it clear that the Court may dispense with the personal attendance of the accused when represented by a pleader, if such attendance was not necessary in the interests of justice. The amendment of the section by Act 26 of 1955 removed all the restrictions and widened the scope of the powers of Courts In this respect. Thus, by the joint operation of Section 205(1) and Sub-section (1) of Section 540A and Section 353 of the Code, a Magistrate was enabled to exercise jurisdiction to exempt the accused from personal attendance both at the time of issuing summons and during enquiry or trial.

5. Before the decision reported In Bibhuti Bhusan Das Gupta v. State of West Bengal it was felt that the Courts were deemed to have the power to grant exemption from personal attendance of the accused during the entire trial including the day on which he is to be questioned under Section 342 Cr.P.C. But after the pronouncement of the Supreme Court in the case stated above the law is well settled that the accused has to appear for questioning under Section 342 Cr.P.C.

6. We are here considering cases where the trials are under procedure for summons cases. When the accused appears before Court either personally or through his pleader, the particulars of the offence can be put to him or to his pleader under Section 242 and if the accused or his pleader admits the guilt the Court can pass orders immediately. Under Section 366. Sub-section (2), the accused is permitted to be absent to receive Judgment when his personal attendance has been dispensed with during trial or when the sentence is one of fine only or when he is acquitted in which case the Judgment can be delivered in the presence of his pleader. It is useful to remember that these salutary provisions have been incorporated in the Code of Criminal Procedure to be resorted to help the accused and not to deny them their benefits. The refusal to extend to the accused the benefits of these sections in appropriate cases is to deny them justice. Courts should try to dispense justice more than law. The dignity of Courts will be preserved by being generous and liberal towards parties generally but harsh and even cruel when justice demands it. The lower Courts should not tend to derive a sadistic pleasure in making large number of accused to crowd the Court without sufficient cause and make them wait from morning till evening. The lower Courts should also guard against any tendency which leads to harassment of the parties coming before them.

7. Now, I will proceed to discuss some of the decisions which were brought to my notice by the learned Counsel for the petitioners. Some of these cases were rendered at a time when people including judges were not attuned to the socialistic ideas of a Welfare State and when feudal concepts of respectability prevailed. That is the reason why Courts have considered cases of only rich purdanashin ladies and other respectable men. The concept of respectability has undergone revolutionary changes. The yardstick to measure respectability Is no longer opulence or status in life. Before a Court everyone is respectable, be he rich or poor, be he highly placed or not. An ordinary labourer in a factory is equally respectable to a Person occupying other positions in life. Therefore, these decisions will be useful only as a guide for the free use of Sections 205 and 540A of the Code.

8. In Aljaz v. Desouza AIR 1956 Bhopal 11 a woman sought exemption from personal attendance in a criminal case. There, the; Judicial Commissioner considered the scope of Sections 205 and 540-A and directed that the petitioner before him, being a purdanashin lady subject to special local and community customs, was entitled to exemption under the relevant sections of the Code. While discussions the right of purdanashin ladies, the learned Judicial Commissioner considered the circumstances under which a Court can compel the attendance of women accused. According to him, where the witnesses did not know the accused and where identification of the accused was necessary the accused can be compelled to attend Court. Even there, it was observed that the Magistrates should satisfy themselves of the need for their appearance before ordering personal attendance.

9. In a Full Bench decision of the Allahabad High Court; reported in Sultan Singh v. The State Their Lord. ships of the Allahabad High Court considered the scope of Sections 205, 353 and 540. A of the Code and held that Section 205 read with Section 353 authorizes the Court to grant exemption from personal attendance at any stage of the case.

10. In Karanjfa v. Chellappan Filial 1960 Ker LT 643 Govinda Menon J. held that the language of Sub-section (1) of Section 205 is general and the exemption contemplated is for the whole duration of the trial, including the day on which the accused is to be questioned under Section 342. This decision has to be read subject to the decision reported in : 1969CriLJ654 .

11. In Anila Bala Devi v. Kandi Municipality a Division Bench of Calcutta High Court held that the conduct of the Magistrate in insisting upon dragging a respectable lady to Court in a petty case cannot but be seriously condemned.

12. In Munnl Beeum v. State : AIR1968Delhi202 the question that was decided was largely on the right of the accused to be represented at 342 questioning, which is now covered by the Supreme Court ruling referred to above. But some observations from this Judgment will be apposite. In paragraph 25 of the Judgment, the High Court has observed:

It cannot be disputed that the present tendency of the Legislature is to permit the accused to be represented by a pleader for all purposes, particularly In petty cases and not to compel him to come to Court personally in all cases. Cases under the Motor Vehicles Act and under some of the Municipal statutes may be mentioned as instances in point.
13. In Zain Yar Jung v. Dr. Raghotam it has been held, and according to me rightly, that the Magistrate should in the exercise of his discretion find whether the ends of justice required that the accused should be granted the exemption and not base his decision solely on the ground that it is necessary to impress upon the public that justice is being done.

14. In Ganpat Singh v. Zora AIR 1951 Aimer 6 : 1951 Cri LJ 1606 it has been held that where the original summaries issued authorized the accused to appear before Court either personally or through a pleader the Court had a duty to exempt the accused from personal appearance.

15. The learned Public Prosecutor brought to my notice the decision reported in Asst. Registrar of Jt. Stock Companies v. Krishnan Nambiar 1958 28 Com Cas 255 ker to show that the offences under the Companies Act are not technical offences. It is worthwhile remembering that in that case the Court sentenced the accused to fine of Re. 1/- for violation of some of the provisions of the Companies Act. It was in that connection that this Court observed that the offences were not technical. The principle enunciated in that case cannot be pressed into service to show that the offences with which the petitioners are charged in these cases are not technical offences.

16. In Kanchan Bai v. State : AIR1959MP150 the principle governing orders to be passed by Magistrates in dispensing with personal attendance of women were laid down. It was held there that in the matter of dispensing with personal attendance of women accused, the discretion under Section 540-A should be liberally exercised by the Subordinate Court.

17. In Rusi Biswal v. Nakyatra malini Devi which was a case relating to a purdanashin lady, it was held that to insist on her personal attendance would involve unnecessary waste of time and harassment to her. The Court further observed

It is not obligatory on the Magistrate to direct the personal attendance of the accused who has been exempted under Section 205 at any stage, including examination under Section 342.
In Dorabashah v. Emperor : 27 Cri LJ 440 a Division Bench of Bombay High Court held that a Court can dispense with the personal attendance of the accused under Section 205. Cr.P.C. at any stage.

18. In the Criminal Rules of Practice (Madras), Rule 82, which was applicable to the erstwhile Malabar area, provides that when several accused are brought before a Court one of them can be permitted to represent the others in the case and the rule directed that the Courts should be liberal in granting such exemptions. Rule 82 is extracted below:

Criminal Courts should, as a rule. In cases where there are more accused than one. permit any one of them to be authorized by any other to appear, plead or act for such other in any criminal proceeding; but the authority shall be In writing and shall contain the signature or the thumb impression of the party giving it, and shall be filed in Court.
This rule was freely used to help persons who had to attend to their daily work by granting exemption from personal attendance and asking one of the accused to be present in Court. Unfortunately, a similar rule is not seen in the Criminal Rules of Practice applicable to the Kerala State.

19. On a consideration of all the aspects of the case I am of the view that in cases where the Court finds 'that the appearance of the accused is not necessary for a disposal of 'the case and where an Advocate undertakes on behalf of the accused to be present in Court, the Courts should be liberal in exempting the accused from personal attendance. It is useful to remember that an Advocate before Court is a responsible officer and when he undertakes on behalf of an accused to be present in Court it has to be given due weight Courts should be generous in extending the benefits of Sections 205. 353 and 540. A to the accused. In cases which are grievous in nature involving moral turpitude, personal attendance is the rule. But in cases which are technical in nature, which do not involve moral turpitude and where the sentence is only fine, exemption should be the rule. The Courts should insist upon the appearance of the accused only when it is in his interest to appear or when the Court feels 'that his presence necessary for effective disposal of the case. When the accused are women labourers, wage. earners and other busy men. Courts should as a rule grant exemption from personal attendance. Courts should see that undue harassment is not caused to the accused appearing before them. I wish to make it clear that the above observations are subject to the fact that In special cases where the Courts feel Presence of the accused necessary it should be insisted upon.

20. The learned Magistrate has observed in one or two cases under review that it will not be possible to collect the fine imposed if the accused are exempted from personal attendance. The arms of law are long enough to get at an accused. The Magistrate should not forget that there are wide powers in his armory to reach at the accused.

21. All these cases, as I have already stated, are cases under the Companies Act and all are private limited companies. The learned Counsel for the petitioner submitted before me that if personal attendance was exempted on the first hearing day itself, the cases could have been disposed of on that day. It is in this context that the salutary provisions in Sections 205 and 540. A should be construed in the interests of expeditious disposal of cases. I would have been happy if the learned District Magistrate had permitted the accused to be represented by pleaders and collected the fine and disposed of the cases on the first hearing date itself. I find it difficult to agree with him in the orders passed by him in these cases which according to me are neither warranted by the circumstances of the case nor necessary in the interests of justice. I feel that interest of justice has suffered in these cases by the refusal to grant exemption prayed for. Even in cases where the District Magistrate himself had issued summons to the accused to appear either in person or 'through pleader, he has not allowed the pleader to represent the accused and in some other cases he has issued warrant. I am constrained to observe that this was a negation of justice. It behooves me therefore to emphasize the liberality built in the sections enumerated above enabling the Magistrates to extend their benefits to the accused appearing before them and to avoid unnecessary harassment. I therefore hold that in all trivial and technical cases where the accused are ladies, old and sickly persons Workers in factories, daily wage earners, other labourers and busy business people or industrialists Courts should invariably exercise discretion liberally to exempt such persons, from personal attendance.

22. Now. I have to consider the nature of the order that, has to be passed in these revision petitions. Two courses are open to me either to exempt 'the personal attendance of the accused myself or to direct the Magistrate to exempt the personal attendance of the accused persons before him in these cases. I think it will be useful In this connection to consider a few cases where Courts have passed different orders.

23. In Raj Rajeswari Debl v. Emperor (1914 Cri LJ 281 (Call a Division Bench of the Calcutta High Court allowed the accused who were ladies to appear at the enquiry or trial by their pleader or pleaders and also directed that the personal attendance of the ladies should be dispensed with till the Sessions Judge passes his order In the case. In Mt. Tirbeni v. Mt Bhag Wati which arose from a reference by the Sessions Judge on an order passed by the Magistrate refusing to exempt the personal attendance of the accused, the High Court accepted the recommendation of the Sessions Judge and directed the Magistrate to proceed with his enquiry and to dispense with the attendance of the accused. In re Ummal Hasanath : AIR 1947 Mad 433 : 48 Cri LJ 874 the Madras High Court held that under Section 561-A of Cr.P.C. the powers of the High Court were wide enough to direct the Magistrate to dispense with personal attendance of the accused during an enquiry by him.

24. In Erfan Ali v. The King where the Magistrate had refused to exempt the personal attendance of the accused, the High Court permitted the accused to appear through a pleader provided a pleader is present to represent him on the next and every subsequent occasion on which the case is taken up. In Chimanlal v. Parashar Singh : AIR 1957 Nag 101 where the accused applied for personal exemption from appearance on the ground that they have extensive business in various places, the High Court granted them exemption from personal attendance and permitted them to appear by a pleader.

25. It is therefore clear with reference to the authorities cited by me above that this Court can in revision exempt the personal attendance of the accused in cases pending before the lower Court or direct the lower Court to grant exemption from personal attendance of the accused before them, where such Courts have refused to do so. I think in these cases the better procedure to be adopted is to direct the lower Court to exempt the personal appearance of the accused in the cases from which these revision petitions have arisen.

26. In Cri. R.P. Nos. 226 and 227 of 1972 the petitioners filed an application for exemption from personal appearance for a day and requested that the plea of guilty may be accepted. The lower Court allowed the petition for exemption for that particular day but refused to accept the plea of guilty indicated in the petition and adjourned the case for another day for appearance of the accused. In these cases, summons issued clearly stated that the accused can appear either in person or through a pleader. However in view of the fact that the application made by the petitioners in these cases was only for exemption for one day which was allowed by the lower Court. I direct the petitioners to file another application in these cases praying for exemption from personal attendance and to permit their pleader to appear for their behalf. I also direct the learned District Magistrate to exempt the petitioners from personal attendance if such an application is made and then proceed In accordance with law in the light of the observations contained in the earlier portions of this order.

27. In the result these criminal revision petitions are allowed and the learned District Magistrate is directed to exempt, personal attendance of the accused in these cases, permit them to appear through their pleader and to proceed according to law.


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