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2009(1) Bankmann 455 (Ker.)
KERALA HIGH COURT
R. Basant, J.
Rohit S. Ved —Petitioner
versus
State of Kerala —Respondent
Cr. M.C. No. 4211 of 2008
Decided on 6.11.2008
Counsel for the Parties:
For the Petitioner:Mr. Ranjit, Advocate.
For the Respondent: Mr. S.U. Nazar, P.P.
IMPORTANT POINT
If personal presence is not required and can be exempted under Section 205, Cr. P.C., the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant.
Headnote:Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 205—Petitioner facing prosecution for offence of dishonour of cheque was summoned through non-bailable warrants by Magistrate —Could be appear before Magistrate through Counsel and claim exemption under Section 205 Cr.P.C. and plead guilty? Yes
Held: The question demands and warrants a look at the fundamentals. The summons as well as warrants whether bailable or not are only processes to secure the presence of an Indictee before Court. Be it not forgotten that both the summons and warrants are only issued in the attempt of the Court to secure the presence of the summonee/warrantee. Where the personal presence of such summonee/warrantee is not necessary for the progress of the case and he can be exempted from personal appearance before Court, there can be no reason to ritualistically insist on the presence of the summonee/warrantee to facilitate consideration of the application for exemption. If personal presence is not required and can be exempted under Section 205, Cr.P.C., the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant. All summons cases, and all other cases where summons is issued at the first instance under Section 204, Cr.P.C. shall fall within the sweep of Section 205, Cr.P.C. In such a case where the Court is satisfied that there is a reason to grant exemption under Section 205, Cr. P.C., the fact that a warrant has been issued later is no reason to insist on the personal presence of the indictee to consider an application for exemption-whether to plead guilty or not guilty.
It is for the petitioner to appear before the Magistrate concerned to claim exemption under Section 205, Cr.P.C. and choose to make appropriate plea. When he makes an application under Section 205, Cr.P.C., the Magistrate concerned will certainly be not justified in not taking up the application for exemption for consideration merely on the ground that a warrant of arrest has also been issued. Where the plea is one of guilty and the learned Magistrate is satisfied that the Counsel has been authorised to make that plea of guilty, I can find no earthly reason which should persuade a Magistrate to insist on the personal presence of such indictee to consider the application for exemption.
This Crl. MC. is allowed to the above extent. The petitioner can appear through his Counsel notwithstanding the fact that warrants of arrest are pending against him. He can apply for exemption under Section 205, Cr.P.C. to make his plea. The learned Magistrate must consider that prayer. To consider that prayer, the learned Magistrate need not insist on his personal presence. (Paras 6 to 8)
Result: Revision allowed.
Key Points: - The petitioner can appear through counsel and plead guilty under Section 205 Cr.P.C., even if warrants of arrest are pending. (!) - If personal presence is not required for progress of the case, exemption under Section 205 Cr.P.C. can be granted without requiring personal appearance, regardless of summons or warrants. (!) - All summons cases and those where summons is issued at first instance fall within the sweep of Section 205 Cr.P.C. for exemption consideration. (!) - The fact that a warrant has been issued later is not a valid reason to insist on personal presence to consider an exemption application. (!) - The petitioner may appear through counsel to claim exemption and plead guilty; the Magistrate must consider the exemption prayer. (!) - The learned Magistrate is not justified in refusing to consider exemption merely because a warrant of arrest has been issued. (!) - Revision allowed to permit appearance through counsel and exemption under Section 205 Cr.P.C.; warrants pending do not bar grant of exemption. (!)
What is the significance of Section 205 Cr.P.C. in allowing exemption from personal appearance for an accused in proceedings under Section 138 NI Act?
What is the court's stance on requiring personal presence when a warrant of arrest has been issued but exemption under Section 205 Cr.P.C. is sought?
What are the circumstances under which a Magistrate must consider an exemption under Section 205 Cr.P.C. without insisting on personal presence or withdrawal of a warrant?
R. Basant, J.—Can a person facing allegations in a prosecution under Section 138 of the Negotiable Instruments Act and against whom a warrant of arrest-bailable or non-bailable has been issued by a Magistrate to procure his presence appear before the Magistrate through Counsel and claim exemption under Section 205, Cr.P.C. and plead guilty? Should his personal presence be insisted? This is the short question that is raised by the petitioner in this Crl. M.C.
2. The petitioner faces indictment in prosecutions under Section 138 of the N.I. Act. The prosecutions are pending before the learned Chief Judicial Magistrate.,Thrissur and the learned Judicial Magistrates of First Class, Thrissur and Kunnamkulam. The allegations relate to cheques issued by the petitioner for the discharge of liability under the E.S.I. Act and the Employees’ Provident Fund Act. In some of the cases, the petitioner has entered appearance. In some others, the petitioner has not entered appearance. In some others, warrants of arrest have been issued against the petitioner. He has already discharged the liability under the cheques.
3. The petitioner wants to appear before such Courts through Counsel and plead guilty in all the cases. The petitioner apprehends that as warrants are pending against him in some of these cases, he may not be permitted to plead guilty through Counsel. It is hence prayed that appropriate directions may be issued to enable him to so appear before the learned Magistrates through Counsel and plead guilty.
4. The learned Counsel for the petitioner submits that the petitioner is obliged to approach this Court as the question does not appear to have been decided finally and conclusively in Jain Babu v. Joseph.1 As a consequence, Magistrates are insisting even when the accused want to plead guilty or take part in the proceedings through Counsel that such applications cannot be entertained without the personal presence of the accused.
5. I find no basis for this apprehension. In Jain Babu in para 16 I have quoted the decision of Mr. Justice K. V. Sankaranayanan in Raman Nair v. State of Kerala.2 In that, the learned Judge has referred with approval to some decisions “which go to the extent that warrants issued can be withdrawn and exemption granted under Section 205, Cr. P.C. on application of the accused.”
6. The question demands and warrants a look at the fundamentals. The summons as well as warrants whether bailable or not are only processes to secure the presence of an Indictee before Court. Be it not forgotten that both the summons and warrants are only issued in the attempt of the Court to secure the presence of the summonee/warrantee. Where the personal presence of such summonee/warrantee is not necessary for the progress of the case and he can be exempted from personal appearance before Court, there can be no reason to ritualistically insist on the presence of the summonee/warrantee to facilitate consideration of the application for exemption. If personal presence is not required and can be exempted under Section 205, Cr.P.C., the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant. All summons cases, and all other cases where summons is issued at the first instance under Section 204, Cr.P.C. shall fall within the sweep of Section 205, Cr. P.C. In such a case where the Court is satisfied that there is a reason to grant exemption under Section 205, Cr. P.C., the fact that a warrant has been issued later is no reason to insist on the personal presence of the indictee to consider an application for exemption-whether to plead guilty or not guilty.
7. It is for the petitioner to appear before the Magistrate concerned to claim exemption under Section 205, Cr. P.C. and choose to make appropriate plea. When he makes an application under Section 205, Cr. P.C., the Magistrate concerned will certainly be not justified in not taking up
