The Supreme Court Sets aside the Judgement of the Kerela High Court for rationalising, humanising and simplifying the procedure in Criminal Courts.

A three judge bench of the Supreme Court reversesd and order of the High Court of Kerala in Crl. M.C. No. 1977 of 2007 for issuing directions to trial courts, in cases under Sec 138 of the Negotiable Instruments Act 1881. For us, the order of the Kerela High Court is yet another instance, where in their anxiety to do justice, the courts have gone overboard. Call it judicial law making, or simply a judgment per incuriam. The judgement of the Supreme Court Can be read here

On 17th November, 2008, while granting leave in this matter, a bench of two learned judges referred the instant case to a larger Bench, posing the following question for determination:

"...One of the questions which arises for consideration in this special leave petition is as to whether the High court in exercise of its jurisdiction under Sections 482 and 483 of the Code of the Criminal Procedure and/or under Article 227 of the Constitution of India could issue guidelines directing all courts taking cognizance of offences under Section 138 of the Negotiable Instruments Act inter alia to invoke the discretion under Section 205 of the Code of Criminal Procedure and only with a further direction that summons under Section 205 shall be issued at the first instance..."

Briefly stated, the genesis of the dispute is that on a complaint filed under Section 138 of the N.I. Act and On being summoned by the Magistrate, the accused preferred a petition before the High Court of Kerela under Section 482 of the Criminal Procedure Code, 1973 (for short "the Code"), inter alia, praying for dispensing with her personal appearance before the Magistrate. 

As afore-stated, the High Court, while allowing the said application, and permitting the accused to appear before the Trial Court through her counsel, felt that there was great need for rationalising, humanising and simplifying the procedure in criminal courts with particular emphasis on the attitude to the "criminal with no moral turpitude" or the criminal allegedly guilty of only a technical offence, including an offence under Section 138 of the N.I. Act.

The single Judge had issued the following 'rules of guidance', with a direction that these can and must certainly be followed by the court below in the instant case as also by all criminal courts which are called upon to deal with trials under Section 138 of the N.I. Act:

The following are the extracts from the impugned order.

i) Hereafter in all 138 prosecutions, the very fact that the prosecution is one under Section 138 of the Negotiable Instruments Act shall be reckoned as sufficient reason by all criminal courts to invoke the discretion under Section 205 Cr.P.C and only a summons under Section 205 Cr.P.C shall be issued by the criminal courts at the first instance. In all pending 138 cases also applications under Section 205 Cr.P.C shall be allowed and the accused shall be permitted to appear through their counsel.

ii) The plea whether of guilty or of innocence can be recorded through counsel duly appointed and for that purpose personal presence of the accused shall not be insisted.

iii) Evidence can be recorded in a trial under Section 138 of the Negotiable Instruments Act in the presence of the counsel as enabled by Section 273 Cr.P.C when the accused is exempted from personal appearance and for that purpose, the personal presence of the accused shall not be insisted.

iv) Examination under Section 313(b) Cr.P.C can be dispensed with under the proviso to Section 313(1) and if the accused files a statement explaining his stand, the same can be received by the court notwithstanding the absence of a provision similar to Section 233 and 243 Cr.P.C in the procedure for trial in a summons case. The power and the obligation to question the accused to enable him to explain the circumstances appearing in evidence against him must oblige the court in such situation to accept and consider the written statement made by the accused.

V) Even though the above directions are issued with specific reference to prosecutions under Section 138 of the Negotiable Instruments Act, they must be followed in all other cases also where the offence alleged is technical and involves no moral turpitude.

The Scheme of the Criminal Procedure Code, in securing personal appearance of accused. 

Section 205 of the Code,  clothes the Magistrate with the discretion to dispense with the personal appearance of the accused The Section confers a discretion on the court to exempt an accused from personal appearance till such time his appearance is considered by the court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See: S.V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr. MANU/SC/0318/2005 : (2005) 4 SCC 173 Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else.

 

Further under Section 313, it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 313 of the Code as well.

Refering to the aforesaid two principles, and retierating the age old principle of the court that the powers of the High Courts under Sec 482 CrPc and Article 227 of the Constitution of India should be sparingly used the Supreme Court was rightly of the view that the impugned order was clearly erroneous in as much as the discretion of the Magistrate under Section 205 of the Code cannot be circumscribed by laying down any general directions in that behalf .

The appeal was allowed with the following observation :

"...Thus, in the instant case, we have no hesitation in holding that the High Court exceeded its jurisdiction under Section 482 of the Code and/or Article 227 of the Constitution by laying down the afore-extracted general directions, which are inconsistent with the clear language of Sections 205 and 313 of the Code, as noted above. We feel that in light of the afore-noted guidelines laid down by this Court, further directions on the same issue by the High Court were wholly uncalled for. In this regard, the following observations in S. Palani Velayutham and Ors. v. District Collector, Tirunelveli, Tamil Nadu and Ors. MANU/SC/1504/2009 : (2009) 10 SCC 664, are quite apt.."

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