P.V. Gangadharan and P.V. Chandran v. State of Kerala and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV TUESDAY,THE22[ND]DAYOFAUGUST2023/31STSRAVANA,1945 CRL.MCNO.1581OF2023 ``` ``` AGAINSTTHEORDERDATED28.01.2023INC.M.P.No.4557/2022in C.C.No.2380/2010OFTHECOURTOFTHEJUDICIALFIRSTCLASS MAGISTRATE-IIKOLLAM. ``` ``` PETITIONERS: ``` ``` 1P.V.GANGADHARAN,AGED79YEARS S/O.P.V.SAMI,PRINTERANDPUBLISHER, MATHRUBHUMIPRINTINGANDPUBLISHINGCO.LTD, - KOZHIKODE,PIN673001 2P.V.CHANDRAN,AGED84YEARS S/O.P.V.SAMIMANAGINGEDITOR,MATHRUBHUMI - PRESS,THIRUVANANTHAPURAM,PIN695035 BYADVS. SRUTHYN.BHAT P.M.RAFIQ M.REVIKRISHNAN AJEESHK.SASI RAHULSUNIL SRUTHYK.K NIKITAJ.MENDEZ ``` ``` RESPONDENTS: ``` ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA, - ERNAKULAM,PIN682031 2 C.F.ROBERT SUBINSPECTOROFPOLICE,MOLYDALE, - CHEMMAKKADU,PERINAD,KOLLAM,PIN691601 SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 22.08.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` **CRL.MC NO. 1581 OF 2023** **:2:** ## **ORDER** The petitioners herein are octogenarians. The 1st accused is the printer and Publisher, and the 2nd accused is the Managing Director of a Daily having circulation in the State. They are facing prosecution at the instance of the party respondent for defamation. They have approached this Court being aggrieved by the refusal on the part of the Judicial Magistrate of First Class-II, Kollam, to permit the petitioners herein to contest the proceedings without insistence on personal appearance. 2. The petitioners filed an application asserting that they are residing in Kozhikode, located over 300 km away, and have highlighted their inability to travel due to advanced age and health conditions. The 1st petitioner has been medically diagnosed with Oligometastatic Hormone-sensitive Recurrent Prostate Cancer, along with other health concerns. To validate this, a medical certificate from the senior consultant at Aster MIMS Hospital has been produced. The second petitioner is reportedly afflicted with Acute Chronic Cervical Spondylosis and has received medical advice against long-distance travel. The petitioners state that they are currently facing charges under Section 500 of the IPC. This offense, is bailable and triable as a summons case and carries simple imprisonment for up to two years or fine. Their request before the learned **CRL.MC NO. 1581 OF 2023** **:3:** Magistrate was to participate in the proceedings without the necessity for personal appearances. They undertook that they shall appear online or be represented by their legal counsel. They stated that they shall not challenge their identity or present any arguments or raise any contention with a view to take advantage of the indulgence granted to them. Furthermore, they have emphasized that, given the implementation of the Electronic Video Linkage Rules for Courts (Kerala) 2021, there should be no obstacles to granting their request. 3. The learned Magistrate took note of the law laid down in **Cardinal Mar George Alencherry v. Joshy Varghese[1]** and was of the view that the accused is bound to appear before the Court unless he is exempted from doing so by the Court. It was also held that the exemption contemplated under Section 205 of the Code is an exception to the normal rule, and the accused cannot claim a vested right. 4. I have heard Smt.Sruthy Bhat, the learned counsel appearing for the petitioners and the learned Public Prosecutor. 5. There is no dispute with regard to the fact that the petitioners are facing prosecution for defamation. The offense is triable as a summons case, bailable and punishable with imprisonment of up to two years or a fine. Section > 1 2022 (7) KHC 228 **CRL.MC NO. 1581 OF 2023** **:4:** 205 of the Code of Criminal Procedure comes under Chapter XVI, which deals with the commencement of proceedings before the learned Magistrate. Section 205 reads as under: S 205: Magistrate may dispense with personal attendance of accused (1) 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. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused and, if necessary, enforce such attendance in the manner hereinbefore provided. 6. The provision says that when a Magistrate issues a summons, he has the discretion to allow the accused to appear through a pleader and not insist on his personal appearance. However, at any point, during the inquiry or trial, the Magistrate can require the accused to attend in person and has the power to ensure this attendance is enforced. 7. It has to be immediately noticed that the learned Magistrate refused the request made by the petitioners relying on the law laid down in **Cardinal Mar George Alancherry** (supra). In the above case, the accused was facing allegations inter alia under section 406 of the IPC, which is a cognizable, non-bailable offence carrying imprisonment of three years or a fine or both. The principles laid therein have no application in the instant case as the case is triable as a summons case and is bailable. **CRL.MC NO. 1581 OF 2023** **:5:** ## 8. In **Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels** **Ltd[2] .** , the question of granting exemption from the appearance of an accused facing prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 came up for consideration before the Apex Court. While explaining the provisions and highlighting the need to be lenient in so far as bailable offences are concerned, it was held as follows in paragraphs 16 to 19 of the judgment. 16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by Magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the “accused appears or is brought before the Magistrate”. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that: “205. (1) 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.” 17. Thus, in appropriate cases, the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the > 2 (2001) 7 SCC 401 **CRL.MC NO. 1581 OF 2023** **:6:** further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who 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 court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. — 18. A question could legitimately be asked what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording **CRL.MC NO. 1581 OF 2023** **:7:** the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. 9. It was held that it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. The learned Magistrate shall, however, in his discretion, direct the personal attendance of the accused at any stage of the proceedings. 10. It would be pertinent to take note at this juncture that the Electronic Video Linkage Rules for Courts (Kerala), 2021, was framed by the High Court of Kerala. The Rules are to apply to the High Court, Subordinate Courts, and Commissioners appointed to record evidence and to an officer appointed to conduct an inquiry. Under Rule 3, electronic video linkage facilities may be used at all stages of judicial proceedings or under any other special law for the time being in force and also to such other proceedings which are conducted by the Court. Rule 3 (2) states that all proceedings conducted in a Court by way of electronic video linkage shall be deemed to be judicial proceedings, and all the courtesies and protocols applicable to a Court shall **CRL.MC NO. 1581 OF 2023** **:8:** apply to the virtual proceedings. Rule 3 (3) says that all relevant statutory provisions applicable to judicial proceedings, including the provisions of the Code of Civil Procedure, 1908, Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, Information Technology Act, 2000, Criminal Rules of Practice, Kerala, Civil Rules of Practice, Kerala and Rules of the High Court of Kerala, 1971 shall apply to the proceedings conducted through electronic video linkage. Chapter III deals with General Procedures. Rule 6 provides that application for appearance, evidence, and submission through electronic video linkage can be taken up if an application in the form prescribed in Schedule II is filed. Rule 7 deals with the service of summons, Rule 8 provides for the examination of persons, and Rule 9 deals with exhibiting or showing documents or objects to the required person or accused. Rule 11 says that the Court may, in its discretion, authorise the detention of the accused, frame charges in a criminal trial, and record the statement of the accused under Section 313 of the Cr.P.C through electronic video linkage. The provision also says that in exceptional circumstances, for reasons to be recorded in writing, dying declaration of persons could be recorded through electronic media linkage and release of an accused can also be made to the above medium. 11. Furthermore, the provisions of the Criminal Procedure Code give ample discretion to the courts in the matter of exempting the accused from personal appearance in appropriate cases. S.205(1) of the Code says that the **CRL.MC NO. 1581 OF 2023** **:9:** Magistrate can dispense with personal attendance of the accused and permit him to appear by his pleader if he sees reason to do so. Even though ordinarily, in a criminal case, evidence has to be recorded in the presence of the accused, Section 273 of the Criminal Procedure Code says that in appropriate cases, the personal appearance of the accused could be dispensed with, and evidence could be recorded in the presence of the pleader. So also, there is Section 317, which says that if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interest of justice, the Judge or Magistrate could dispense with the personal attendance of the accused and proceed with the inquiry or trial in his absence. 12. In **Mathew v. State of Kerala[3]** , the accused was facing prosecution for having committed an offence punishable under Section 420 of the I.P.C. The accused was in Switzerland, and a non-bailable warrant was issued against him, and his passport was also impounded. While considering the application for exemption under Section 205 the Cr.P.C, it was observed by this Court in paragraph 6 of the judgment as follows: 6. The very existence of the courts is for dispensation of justice. The process of courts should not be used for harassment of litigants. The insistence on the appearance of parties before court need be only if it becomes absolutely necessary for some purpose. Courts are entitled to > 3 1986 K.L.T 126 **CRL.MC NO. 1581 OF 2023** **:10:** compel the appearance of the accused. But such insistence should not be for the mere pleasure of the accused being seen in the dock. Sometimes his presence may be absolutely essential, say for instance, for questioning him or for himself being identified by witnesses. Insistence on his appearance in such cases may be alright. To insist on his appearance on a day when his appearance has nothing to do with the progress of the case will only result in unnecessary harassment, especially when he has some inconvenience and his counsel is prepared to represent him. In this case that is what actually happened. The petitioner who is the accused before the Magistrate is already in Switzerland. Even if he wanted he was not in a position to come over to India and appear before the Magistrate because on the requisition of the Magistrate himself his passport was impounded by the concerned authorities.The Magistrate ought to have realised the fact that under such circumstances appearance of the accused before him was rather an impossibility. One could only enjoy sadistic pleasure by insisting on an unnecessary impossibility and penalising a person for not complying with such a condition. 13. In **Sarath v. State of Kerala[4]** , the accused was employed abroad and he had difficulty coming back to India. He came to know that the non-bailable warrant had been issued. Since it was difficult for the accused to obtain leave, a counsel was engaged to appear before the Court below and seek exemption from personal appearance invoking Section 205 of the Cr.P.C. The learned Magistrate rejected the application. A learned single judge after extensively considering the law on the subject held that the pendency of a non-bailable warrant against the accused cannot be a ground to refuse the > 4 2017 3 K.L.T 95 **CRL.MC NO. 1581 OF 2023** **:11:** prayer under Section 205 of the code. 14. The Apex Court in **Chandmal @ Chandamal v. State of M.P[5]** , while deprecating the directions issued by the High Court ordering surrender, it was held that appearance through videoconferencing is an alternative method of appearance now which is to be followed by all courts. 15. In summons cases, such as the current case, where the accused is being prosecuted under Section 500 of the IPC, a Magistrate has the authority to waive the personal appearance of an accused either for the entirety or at any specific stage of the proceedings. If it is brought to the notice of the learned Magistrate that enforcing the personal appearance would impose significant hardship or suffering on the accused, especially when the benefits of such presence are minimal, necessary orders can very well be issued. In the present case, both the printer and publisher, along with the editor of a newspaper, are being summoned to court on charges of defamation. Evidence suggests that they are elderly and grappling with severe health conditions. Additionally, their place of residence is approximately 300 km from the Court. In view of the law laid down in **Bhaskar industries** (supra), the enactment of the Video Linkage Rules and video conferencing facilities in courts, the learned Magistrate ought to have granted exemption from appearance, stipulating > 5 2023 SCC OnLine SC 127 **CRL.MC NO. 1581 OF 2023** **:12:** necessary conditions. The Apex Court has held that in appropriate cases, a Magistrate may authorize an accused to make their initial appearance through counsel. Moreover, the Magistrate has the discretion to record the plea of the accused even if presented by their counsel, in scenarios where the accused's personal appearance has been waived. The primary responsibility of the Magistrate in such cases is to secure an assurance ensuring that the accused will not contest their identity as the specified accused in the proceedings. Furthermore, the accused must guarantee that they shall be duly and promptly be represented in court, and they consent to evidence being recorded in their absence. 16. It would be pertinent to note that substantial investment has been made to spruce up the court infrastructure, with a focus on integrating technology with court proceedings. This is to ensure that justice is not only served but is also accessible, efficient, transparent and swift. Central to this evolution is the introduction of the Video Linkage Rules. These rules, designed to integrate court proceedings with cutting-edge technology, allow for court proceedings to be attended virtually. The rules are intended to translate the proceedings into a more liberal, fair, and convenient judicial process for all the stakeholders. The physical exercise of appearing in person, particularly for minor offenses or procedural hearings, especially when weighed against the actual necessity of their physical presence, can be done away with. Virtual **CRL.MC NO. 1581 OF 2023** **:13:** court proceedings, bolstered by the Video Linkage Rules, can also speed up the judicial process. This is particularly beneficial in cases where witnesses, experts, or even the accused are located in remote areas or are unable to travel due to health or other constraints. By allowing the accused to attend proceedings virtually, the courts are acknowledging the importance of convenience and the presumption of innocence. However, as with any system, checks and balances are paramount. The court retains the discretion to mandate a physical appearance if deemed essential for the proceedings. This ensures that while the system is flexible and liberal and does not compromise the integrity or the robustness of the judicial process. While the pursuit of justice is unwavering, with the aid of cutting-edge technology, it is also adaptive, empathetic, and in step with the times. 17. In view of the discussion above, I am not in a position to uphold the order passed by the learned Magistrate. The impugned order is set aside.Annexure-2 will stand quashed. The following directions are issued. A. The learned Magistrate is directed to consider the application to be filed under Section 205 of the Cr.P.C through the counsel. The petitioners shall be released on bail on their depositing a sum of ₹25,000/- (Rupees Twenty five thousand only) each before the learned Magistrate. The learned Magistrate shall not insist on sureties. **CRL.MC NO. 1581 OF 2023** **:14:** B. The learned Magistrate shall permit the petitioners to appear before the Court and contest the case without insisting for a personal appearance. However, it is made clear that if the appearance of the petitioners herein is required at any stage, it would be open to the learned Magistrate to issue such directions and in that event, the petitioners shall appear as ordered. sd/- **RAJA VIJAYARAGHAVAN V JUDGE** PS/22/8/2023 **CRL.MC NO. 1581 OF 2023** **:15:** ## **`APPENDIX OF CRL.MC 1581/2023`** ``` Annexure1TRUECOPYOFTHEPETITIONPREFERREDBYTHE PETITIONERSHEREINSEEKINGTHEPERMISSIONOFTHE COURTBELOWTOAPPEARTHROUGHVIDEOCONFERENCING Annexure2TRUECOPYOFORDERDATED28-01-2023C.M.P.NO. 4557/2022INC.C.NO.2380/2010OFTHECOURTOF THEJUDICIALFIRSTCLASSMAGISTRATEII,KOLLAM Annexure3TRUECOPYOFTHEMEDICALCERTIFICATEDATED 13-02-2023ISSUEDBYDR.K.V.GANGADHARANMD, DM,ASTERMIMSHOSPITAL Annexure4TRUECOPYOFTHEMEDICALCERTIFICATEDATED 20-02-2023ISSUEDBYDR.RAJESHSUUBASH,D'ORTHO, PVSHOSPITAL, Annexure5TRUECOPYOFTHEORDERSHEETSPERMITTING APPEARANCEOFTHEACCUSEDPERSONSTHROUGHVIDEO CONFERENCINGINVARIOUSCOURTS. ```