Hallaj M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939** **Crl.MC.No. 6077 of 2017 () --------------------------ST.19/2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTII, THODUPUZHA** ## **PETITIONER(S)/ACCUSED: ---------------------** **HALLAJ M., AGED 60 YEARS, S/O MEERAKUTTY, ARACKAPPARAMBIL HOUSE, THODUPUZHA, IDUKKI DISTRICT.** **BY ADVS.SRI.S.RAJEEV** **SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT(S)/STATE/COMPLAINANT:** **--------------------------------** ## **1. STATE OF KERALA,** **RE.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. RAJAN,** **S/O NEELAKANTAN, PROPRIETOR, SREELAKSHMI FINANCE, MANGALATH BUILDING, THODUPUZHA-689002.** ## **R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ## **Crl.MC.No. 6077 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **-----------------------ANNEXURE I TRUE COPY OF REPLY NOTICE ISSUED BY THE PETITIONER** **ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 19.08.2017 IN CMP NO.2333/17 IN ST.NO.19/2017 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-II,THODUPUZHA ANNEXURE III TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER UNDER SECTION 205 CR.PC. RESPONDENT(S)' ANNEXURE -----------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 6077 of 2017 ================== Dated this the 30[th] day of August, 2017 **==> picture [64 x 15] intentionally omitted <==** The petitioner is an Advocate practising mainly in various subordinate courts in Idukki district. The petitioner is arrayed as accused for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.19/2017 on the file of the Judicial First Class Magistrate's Court-II, Thodupuzha, instituted on the basis of the complaint filed by the 2[nd] respondent herein. The dishonoured cheque involved in this case dated 23.5.2016 is for Rs.4.89 lakhs. The petitioner had filed an application as per Criminal Miscellaneous Petition No.2333/ 2017 in the above complaint seeking orders from the trial court to grant him personal exemption by virtue of the enabling powers conferred under Sec. 205 of the Cr.P.C. The said application of the petitioner has been rejected as per the impugned Anx.II order rendered by the trial court on 19.8.2017. It is this order at Anx.II which is under challenge in this Crl.M.C. 2. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner (accused) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State. In the nature of the order that is proposed to be passed in this petition, notice to R-2 (complainant) will stand dispensed with. 3. A reading of the impugned Anx.II order rendered by the trial Crl.M.C.6077/17 - : 2 :- court makes it clear that the complaint was originally filed before the Chief Judicial Magistrate's Court, Thodupuzha, as S.T.No.85/2017 and the same was made over by Chief Judicial Magistrate to the present trial court (J.F.C.M.-II, Thodupuzha) and refiled as S.T.No. 19/2017. Further it is clearly stated in the impugned order that at the very initial stage, the petitioner/accused had appeared before the Chief Judicial Magistrate's Court and that he was enlarged on bail, etc. The main ground urged by the petitioner for grant of personal exemption is that he is a lawyer, who is actively practising before various subordinate courts in Idukki district including the present trial court and that it would be embarrassing for him to frequently appearing before the trial court as an accused as it would affect his professional function, etc. The trial court has held that the said ground urged by the petitioner is not relevant and valid and that the petitioner cannot claim that he has inconvenience to appear before the trial court and that he should again execute bail bond before the present trial court even though he was granted bail by the Chief Judicial Magistrate's Court, which had initially dealt with the complaint. 4. This Court in the judgments as in Reddy v. Excel Glasses Ltd. reported in 2010 KHC 548 = 2010 (3) KLT SN 11 (C.No.14) has held that even before executing bail bond, in case there are sufficient reasons, the accused is entitled to apply for exemption from personal appearance and that in the light of the various rulings as in Bhaskar Industries Ltd. v. Crl.M.C.6077/17 - : 3 :- Bhiwani Denim & Apparel Ltd. reported in (2001) (7) SCC 401 = AIR 2001 SC 3625 and Ajith Kumar Chakravorty & Ors. v. Serampore Municipality reported in 1989 Crl.L.J. 523 and various provisions contained the Cr.P.C. as in Secs.205 and 317 of the Cr.P.C., that in appropriate cases, the Magistrate can allow an accused to even make first appearance through counsel and that the learned Magistrate should have considered the petition filed by the petitioner therein on merits, irrespective of the fact that he had not executed the bail bond, etc. The Apex Court in the celebrated case in Bhaskar Industries v. Bhiwani Denim & Apparels Ltd. & Ors. reported in (2001) 7 SCC 401, has held that in summons case, such as one involving offence under Sec.138 of the Negotiable Instruments Act, if it appears to the court that personal attendance may result in enormous hardship and cost to an accused, the court may dispense with his personal attendance either throughout or at any particular stage of the proceedings, after taking an undertaking from him 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 court and that he would have no objection in taking evidence in his absence. The Apex Court held therein that the main concern of the court is administration of criminal justice and for that purpose, the court proceedings should register progress and that discretion to dispense with personal attendance should be exercised in appropriate cases due to physical Crl.M.C.6077/17 - : 4 :- disability, distance or other goods reasons, in the interest of justice, etc. It was further held that where the attendance of the accused is dispensed with, the Magistrate can record the plea of the accused through the counsel, etc. It is brought to notice that in the instant case, the plea of the accused has already been recorded. It is not in dispute that the petitioner is actively practising as an Advocate before various subordinate courts in Idukki district, including the present trial court. It does not require any sophisticated insight and analysis to understand that a practicing Advocate may find it extremely embarrassing to frequently appearing as an accused in the criminal court where he is practising and depending on the gravity of the offence and the facts of the cases, the trial court is certainly empowered to exercise its discretion under Sec. 205 of the Cr.P.C. In the instant case, the offence alleged against the petitioner is only one under Sec.138 of the Negotiable Instruments Act which is a technical and statutory offence and it does not involve any serious element of mens rea. This Court in the judgment in Raman Nair v. State of Kerala, reported in 1999 (3) KLT 714, has held that where the offences are of technical nature or do not involve moral turpitude, exemption should be the rule and the trial court should not insist for personal appearance of the accused person. It will be profitable to refer to para 2 of the abovesaid decision rendered by this Court in Raman Nair's case reported in 1999 (3) KLT 714, which reads as follows: Crl.M.C.6077/17 - : 5 :- '2. It is contended by learned counsel for the petitioner that though exemption from personal appearance may be justified at the trial stage, in this case, second respondent has not appeared in Court even on one occasion and so the order was not justified. S.205 Cr.P.C. permits exemption from appearance at the initial stage. S. 317 Cr.P.C. deals with such exemption during the actual trial. Learned counsel for the respondent has pointed out the decisions in Helen Rubber Industries and Ors. v. State of Kerala (1972 KLT 794) and Mathew v. State of Kerala (1986 KLT 128) and contended that exemption from appearance granted was proper. These decisions show that where the offences are of a technical nature or do not involve moral turpitude, exemption should be the rule and the Court should not insist on personal appearance of the accused person. But learned counsel for the petitioner contends that the accused has to appear in Court at least once and seek and obtain bail. According to learned counsel, exemption can be granted under S. 205 Cr. P.C. only if the Magistrate decides to exempt the accused from personal appearance even at the time of issuance of summons and not at a later stage. S. 205(1) reads as follows: _“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.”_ It is contended by learned counsel for the petitioner that this right to exempt must be exercised by the Magistrate when the summons is issued. If summons is already issued, the accused has necessarily to appear and then seek bail. But there is nothing in S. 205(1) to indicate that the power to grant exemption from personal attendance cannot be exercised after issuance of summons. The Section only means that in cases where the Magistrate issues a summons, he can dispense with the personal attendance of the accused. Such exemption is not expected in cases where the Magistrate decides to issue warrant. The decisions on the point indicate that the right can be exercised on an application. Such applications can be filed only when summons is issued and not earlier. Some decisions even go the the extent that warrants issued can be withdrawn and exemption granted under S. 205 Cr .P.C. on application of the accused. In this case, there is nothing to find that the Magistrate has exercised the discretion illegally or irregularly. No interference is called for. Hence, this petition is dismissed.' 5. Going by the legal principles laid down by the Apex Court in Bhaskar Industries' case supra and by this Court in Reddy's case supra, etc. this Court is of the considered view that the trial court went wrong in denying reasonable and fair request made by the petitioner. It is evident from a reading of the impugned order itself that at the initial stage itself, Crl.M.C.6077/17 - : 6 :- the original trial court concerned (Court of Chief Judicial Magistrate, Thodupuzha) had granted bail to the petitioner and the case was later made over to the present trial court and obviously case records including the papers in connection with the grant of bail must be in the case file. It is submitted by Sri.S.Rajeev, learned counsel appearing for the petitioner on the basis of the instructions of his party that the petitioner had duly appeared before the Chief Judicial Magistrate's Court, Thodupuzha and was granted bail by that court and that the petitioner had executed bail bonds in that regard. If that be so, this Court would prima facie fail to understand as to why the trial court has insisted that the petitioner should again appear before the court and seek bail and execute bail bond, etc. Accordingly, the impugned order is set aside and the plea made by the petitioner for exemption from personal appearance will stand allowed on condition that the petitioner should file an affidavit of undertaking in terms of the directions issued by the Apex Court in the judgment in Bhaskar Industries v. Bhiwani Denim & Apparels Ltd. & Ors. reported in (2001) 7 SCC 40. The affidavit in that regard should be filed by the petitioner within a period of 2 weeks from the date receipt of a certified copy of this order. The said affidavit should be filed by the petitioner along with a certified copy of this order. 6. Sri.S.Rajeev, learned counsel appearing for the petitioner would also urge before this Court that this Court may pass necessary Crl.M.C.6077/17 - : 7 :- directions to the learned Magistrate for exempting the petitioner from personal appearance at the stage of questioning process under Sec.313 of the Cr.P.C. In this regard it is ordered that the petitioner will be at liberty to file a proper affidavit application in that regard through his counsel along with an affidavit of undertaking as envisaged in the directions issued by the Apex Court in Basavaraj R.Patil & Ors. v. State of Karnataka & Ors. reported in (2000) 8 SCC 740. It is made clear that if the petitioner files the requisite application at the appropriate time along with affidavit of undertaking in terms of the directions issued by the Apex Court in Basavaraj R.Patil's case supra, then the said plea should be duly considered by the learned Magistrate in the light of the legal principles laid down by the Apex Court in the judgment in Basavaraj R.Patil's case supra. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge