2004 Supreme(Bom) 1233

IN THE HIGH COURT OF BOMBAY
Bhosale D.B., J.
Bhaskar Sen .... petitioner.
Versus
State of Maharashtra others.... Respondents.
Criminal Writ Petition No. 1424 of 2003 with Criminal App. Nos. 3191, 3192, 3392, 3129 of 2004, decided on 1-9-2004.
Advocates appeared :
O.A. Siddiqui, in Cri.W.P. No. 1424/2003, for petitioner.
R.Y. Mirza, A.P.P. in Cri.W.P. Nos. 1424/2003, 3191 3192/2004, for respondent-State.
P.K. Dhakephalkar, Cri.W.P. No. 1424/2003, for respondent No. 2.
Subhash Jha with G. Upadhye Gaurav Agrawal, Cri.W.P. Nos. 3191 3192/2004, for petitioner.
O.A. Vaishnav, in Cri.W.P. Nos. 3191 3192/2004, for complainant.
D.C. Shah, in Cri.W.P. No. 3392/2004, for petitioner.
S.R. Shinde, A.P.P. in Cri.W.P. No. 3392/2004, for respondent-State.
Kuddas Harialla, in Cri.W.P. No. 3392/2004, for respondent.
R.R. Bhosale, in Cri.W.P. No. 3129/2004, for petitioner.
K.V. Saste, A.P.P. Cri.W.P. No. 3129/2004, for respondent-State.

Headnote:Negotiable Instruments Act, 1881 — Section 138, 141 & 143 — Criminal Procedure Code, 1973 — Sections 82, 205, 317 — Dispensing with physical presence of an accused in summons cases — Powers of Courts — Proceedings u/s. 138 NI Act — Summons were issued calling upon petitioners accused to appear — In due compliance of summons, the Advocate filed an appearance on behalf of accused — On the very same day, a warrant was issued to secure presence of accused — Revision filed against order of issuance of warrant — Revision dismissed — Petition filed for quashing of non bailable warrants and proclamation issued requiring accused to appear before the Court — Whether in summons case it is imperative for an accused to appear in trial court on each and every date of hearing — (No) — Ordinarily court should be generous and liberal in granting exemption to accused from personal appearance unless his presence is imperatively needed — If an accused is seeking permanent exemp-tion, court should take precautions — Issuance of warrant should be applied as a last resort.

       Held: A large number of cases are being filed in this Court seeking cancellation of NBW issued either while rejecting the application for exemption or for non appearance of the accused on one date of hearing even if Advocate for the accused appears on his behalf. It is also observed that the complaints under Section 138 of the Act are being filed against the companies in which all the directors are being arraigned as accused and their presence is being insisted on every date of hearing and no proceedings are being taken up in their absence. It is further observed that the progress of the cases under Section 138 impedes for want of their presence. The fact remains as to why their presence is being insisted on every date of hearing. The idea is to see that the progress of the case is not hindered for want of presence of the accused of even the complainant for that matter. Keeping this in view and against a backdrop of the observations made in the foregoing paragraphs, I deem it appropriate to issue the following directions to the Courts trying summons cases and in particular, cases under Section 138 of the Act.

        (i) Ordinarily, the Court should be generous and liberal in exercising powers under Sections 205 and 317 of the Code and grant exemption to the accused from personal appearance unless presence is imperatively needed or becomes indispensable. While considering the application for exemption, the Court should also bear in mind the nature of accusations and prejudice, if any, likely to be caused to the prosecution or the com-plainant, if personal atten-dance of the accused is dispen-sed with or to the accused if personal attendance is insi-sted upon, as case may be.

        (ii) If an accused makes even the First appearance through a counsel, he may be allowed to do so.

       (iii) If an accused is seeking permanent exemption in a case, the Court, while dealing with such application, should take precautions that the accused 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 the Court on all dates of hearings and that he has no objection for recording a plea on his behalf of a counsel and in taking evidence in his absence.

       (iv) While dealing with the applica-tion seeking permanent exe-mption from appearing in the case as aforestated, if, the Court for any reasons, is of the opinion that such exemption should not be granted, it may do so by recording or indicating reasons for rejecting such prayer.

        (v) It is open for the Court to grant exemption which is either permanent or for a specific period, depending upon the facts of each case, on the conditions as it deems fit and proper, requiring the accused to file an undertaking as indicated earlier.

       (vi) In a given case, the Court may record a plea of the accused even when his Advocate makes such plea on his behalf in a case where personal appearance of the accused is dispensed with on his furni-shing the undertaking in terms of clause (iii). However, it is open for the Court to refuse such permission for reasons to be recorded separately.

       (vii) The Court should on issuance of nonbailable warrant in the first instance to secure pre-sence of the accused facing trial and it should be applied as a last resort.

       (viii) If a counsel for the accused fails to appear in the matter and his absence impedes further progress of the procee-dings including examination of witnesses, the Court may resort to any other course as may be available under the provisions of the Code to secure presence of the accu-sed, including issuance of

       NBW and may cancel the order of exemption and in such case may or may not grant exemp-tion any more.

       (ix) The Court should avoid requiring the accused or his Advocate to apply for exemption on every date of hearing.

        (x) While exercising the powers to grant exemption, under any circumstances, the Court shall not compromise with the fur-ther progress of the procee-dings and see to it that the presence or absence of either of the parties does not impede the proceedings.

       (xi) In a given case, similar para-meters be applied for granting exemption to the complainant if his absence is not likely to cause prejudice, if any, to the accused or hinder the progress of the case/complaint. (Para 10)

       In so far as the instant five petitions are concerned, the orders impugned shall remain stayed until the concerned Magistrates pass appropriate orders keeping in view the observations made in this judgment. (Para 11)