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1992 Supreme(AP) 139
Andhra Pradesh High Court
Judges : J.ESWARA PRASAD
M.Shyam Prasad Reddy - Appellant
Versus
State OF A.P. - Respondent
Decided On : 03-09-92
The court's discretion in dispensing with the personal appearance of the accused under Section 205 CrPC should be exercised judicially, considering the circumstances of the case and the interests of justice.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 205 - DISPENSING WITH PERSONAL APPEARANCE OF ACCUSED - COURT'S DISCRETION - FACTORS TO BE CONSIDERED.
Fact of the Case:
Petitioners, accused in a case under the Prevention of Insults to National Honour Act, 1971, sought to dispense with their personal appearance during the trial due to their busy schedules. The Magistrate dismissed their petition, citing an earlier order directing their presence on a specific date.
Finding of the Court:
The court held that the Magistrate erred in not considering the merits of the petition and in assuming that any order dispensing with the petitioners' presence would amount to a review of the earlier order.
Issues: 1. Whether the Magistrate erred in dismissing the petitioners' petition without considering its merits? 2. Whether the court can exercise its powers under Section 482 CrPC to quash the interlocutory proceedings of the lower court?
Ratio Decidendi: 1. The court relied on precedents holding that the accused's personal appearance during the trial is primarily for their own benefit, and that their request for exemption should be granted unless it is necessary for the interests of justice or there are other good reasons for their presence. 2. The court held that it can exercise its powers under Section 482 CrPC to quash interlocutory proceedings when the lower court has not judicially exercised its mind and has not adverted to the merits of the case.
Final Decision: The court allowed the petition, quashed the non-bailable warrants and the Magistrate's order, and dispensed with the petitioners' personal appearance. However, the Magistrate was permitted to require their presence for specific reasons, such as identification by witnesses.
( 1 ) THE Petitioners are accused in c C No. 207 of 1991 on the file of the court of the Judicial Magistrate of First class Gudur for the alleged offences under section 2 of the Prevention of Insults to national Honour Act 1971 on a private complaint filed by the 2nd respondent. The petitioners filed Criminal MP No. 145 of 1992 before the Judicial Magistrate of First Class, Gudur to dispense with their presence on the ground that all the three petitioners are busily engaged in their vocations and are unable to attend the Court on the various dates of adjournments in the case. The first petitioner claims that he is the proprietor of a reputed film concern The second petitioner is the Chairman of the a P State Film Development Corporation stationed at Hyderabad and is aged about 70 years. The third petitioner is a reputed cine director and has to move from place to place very often.
( 2 ) THE learned Magistrate by his order dated 22-1-92 dismissed the said petition on the ground that an earlier petition filed under Section 205 Cr PC by the petitioners was allowed by his predecessor by directing the petitioners to be present in court on 19-10-1990 and that any order dispensing with the presence of the petitioners will amount to a review of this earlier order of the court.
( 3 ) THE petitioners earlier filed Crl m P No 2215 of 1990, under section 205 (1) Cr P C requesting that their personal appearance may be dispensed with and that they may be permitted to appear through their counsel. The learned Magistrate passed orders dispensing with the personal attendance of the petitioners on that day (i e on 7-9-90) and further directing the petitioners to appear in person on the next date of adjournment i e on 19-10-1990. The petitioners sought quashing of the said order in Crl M P No. 1768 of 1990, and this court by judgment dated 13-3-91 dismissed the petition, holding that there was no improper exercise of the discretion on the part of the Magistrate in directing the petitioners to appear on the next date of hearing. It was however observed by this court that the petitioners if so advised, may file an application before the learned magistrate to dispense with their attendance during the course of the enquiry/ trial under section 317 Cr P C and that the learned Magistrate may pass appropriate orders.
( 4 ) SRI Koka Raghava Rao, the learned counsel for the petitioners, submitted that this court observed that a petition may be filed before the learned magistrate and that it is open to the court to consider dispensing with the presence of the petitioner, and that the lower court did not judicially exercise its discretion in deciding the case on merits. It was nowhere discussed by the learned magistrate as to the necessity to dispense with the presence of the petitioners. He further contended that the presence of petitioners is required mainly in the interest of the accused themselves and that the court should grant their request, unless it is of the opinion that in the interest of justice, the presence of the accused is necessary throughout the course of the trial.
( 5 ) IN N. Hannama Vs. State of ap (I) 1978 (2) ALT-169, this Court. dealing with Section 205 Cr PC held that in case where the accused himself applies to the Court to be exempted from personal appearance, then the court should grant the request, unless it is of the opinion that in the interests of justice it is necessary that the accused should be present throughout the course of the trial, or unless there are some other good reasons for directing the presence of the accused throughout the course of trial. In sultan Singh Vs. The State (2) AIR 1951 all 864, it was held as follows :"the law enjons that an accused should be present during the course of the trial more to safeguard his interests than to causing inconvenience. In a case where the accused himself applied to the court to be exempted from personal appearance then a court should grant his request u
