Thressiamma Varghese v. K.I. Thankachan and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938** **Crl.MC.No. 697 of 2017 () -------------------------** **C.C.NO.468/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PIRAVOM.** **..........** ## **PETITIONER/ACCUSED:** **-------------------** **THRESSIAMMA VARGHESE, AGED 78 YEARS, OORETHU HOUSE, AMBALLOOR DESOM, AMBALLOOR VILLAGE, KANAYANNOOR TALUK, AMBALLOOR P.O, PIN - 682315.** **BY ADVS.SRI.RAJU JOSEPH SRI.D.ARUN GEORGE SRI.K.S.SREERAJ** ## **RESPONDENTS/STATE AND COMPLAINANT:** **----------------------------------** **1. K.I.THANKACHAN, S/O.ITTAN, KAKKARETH HOUSE, MAVELLOR KARA, KOTTAYAM DISTRICT - 686001.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-02-2017,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **Crl.MC.No. 697 of 2017 () --------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE 1: A TRUE COPY OF THE COMPLAINT. ANNEXURE 2: A TRUE COPY OF PASSPORT OF THE PETITIONER. ANNEXURE 3SERIES: TRUE COPIES OF PRESCRIPTION OF MEDICINES AND BILL OF MEDICINES. ANNEXURE 4: TRUE COPY OF CMP.NO.2301/2016 FILED U/S.205 OF THE CODE OF CRIMINAL PROCEDURE BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE COURT, PIRAVOM. ANNEXURE 5: TRUE COPY OF THE AFFIDAVIT FILED ALONG WITH CMP.NO 2301/2016. ANNEXURE 6: CERTIFIED COPY OF THE ORDER DATED 07.12.2016 IN CMP NO.2301/2016 IN CC NO 468/2016 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, PIRAVOM. ANNEXURE 7: CERTIFIED COPY OF CMP NO 46/2017 IN CC NO.468/2016 OF JUDICIAL 1ST CLASS MAGISTRATE COURT, PIRAVOM.** **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 697 of 2017 ================== Dated this the 13[th] day of February, 2017 O R D E R The petitioner is accused in C.C.No.468/2016 on the file of the Judicial First Class Magistrate's Court, Piravom, alleging offence under Sec.138 of the Negotiable Instruments Act on the basis of the complaint filed by the 1[st] respondent. After taking cognizance, the learned Magistrate issued summons to the petitioner accused and on 28.10.2013, the petitioner accused appeared before the learned Magistrate and secured bail. In compliance with the directions issued by the judgment dated 1.8.2014 the Apex Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. (Crl.Appeal No.2287/2009) reported in (2014) 9 SCC 129, the complaint was returned by J.F.C.M., Kolenchery, for presentation before the Judicial First Class Magistrate's Court-II, Piravom. The case was renumbered as C.C.No.468/2016 on the file of Judicial First Class Magistrate's Court, Piravom. The Judicial First Class Magistrate's Court, Piravom, had again issued summons to the petitioner Crl.M.C.697/17 - : 2 :- accused. It is stated that the petitioner is a 78 year old lady and she is suffering from various old age ailments and that so she has not appeared before the trial court on all posting dates. Accordingly, the counsel for the petitioner had filed application under Sec.205 of the Cr.P.C. as Criminal Miscellaneous Application No.2301/2016 for dispensing with the personal appearance of the petitioner accused and to answer the plea through counsel and also to permit the petitioner to answer questioning under Sec.313 of the Cr.P.C. through her pleader as instructed by the petitioner accused and a petition for continuing the bail taken by the petitioner accused from the Judicial First Class Magistrate's Court, Kolenchery. However, the impugned Anx.6 order was passed by the learned Magistrate on 7.12.2016 dismissing the said application on the ground that the petition is vague regarding the ailments suffered by the petitioner as also regarding the physical disability and that the reasons stated by the petitioner are no ground for permanently exempting her from personal appearance. 2. It is further averred that the case was posted to 7.1.2017 for appearance of the accused for recording the plea. On the same day, the counsel for the petitioner accused filed an “absent petition” Crl.M.C.697/17 - : 3 :- as Crl. Miscellaneous Petition No.46/2017 before the learned Magistrate, who rejected the same and the bail bond of the petitioner accused forfeited and issued NBW to the petitioner accused and also had issued notice to the sureties. It is in the above circumstances that the petitioner has filed the instant Crl.M.C. by taking recourse to the extraordinary powers conferred on this Court as per Sec.482 of the Cr.P.C. The orders under challenge are those at Anx.6 dated 7.12.2016 and Anx.A-7. 3. Heard learned counsel appearing for the petitioner accused and learned Prosecutor appearing for the State. In the nature of the order proposed to be passed in this case, notice to R-1 is dispensed with. 4. Anx.3 series are the medical prescriptions and bills relating to the petitioner. It is not in dispute that the petitioner is a 78 year old lady. There are no reasons to disbelieve her version that at this old age, she is suffering from ailments related to old age. The reason stated by the learned Magistrate that the petition is vague regarding the ailments suffered by the petitioner as also her physical condition is hyper-technical and the learned Magistrate could have easily understood the predicament, in which a 78 year Crl.M.C.697/17 - : 4 :- old lady is placed in having to face the impugned criminal proceedings. 5. This Court in the judgment in Reddy v. Excess Glasses Ltd. reported in 2010 (3) KLT SN 11 (C.No.14) (judgment dated 4.3.2010 in Crl.R.P.No.1687/2015 & Crl.M.C.No. 1970/2005) has held that the Magistrate can allow an accused to make even the first appearance through counsel. Even before the executing bail bond, for sufficient reasons, the accused is entitled to apply for exemption from personal appearance. It was held therein by this Court that even before executing a bail bond, in the event there are sufficient reasons, the accused is entitled to apply for exemption from personal appearance. In the light of the decisions reported in AIR 2001 SC 3625 [Bhaskar Industries Ltd. v. Dhiwani Denim & Apparel Ltd.], 1989 Crl.L.J. 523 [Ajith Kumar Chakravorty & Ors. v. Serampore Municipality], and the provisions contained in Sec. 205 and 317 of the Cr.P.C., this Court found that in appropriate cases, the magistrate can allow an accused to make even the first appearance through counsel and the learned magistrate ought to have considered the petition filed by the accused therein on merits, irrespective of the fact that he has not executed the bail bond, etc. Crl.M.C.697/17 - : 5 :- 6. 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 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 the personal attendance should be exercised in rare cases due to physical disability, distance or other goods reasons, in the interest of justice. 7. It was also held by the Apex Court in the celebrated case in Basavaraj R.Patil & Ors. v. State of Karnataka & Ors. reported in (2000) 8 SCC 740, that Sec. 313 of the Cr.P.C. is mainly intended to Crl.M.C.697/17 - : 6 :- benefit the accused and as its corollary to benefit the court in reaching the final conclusion and the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim _audi alteram partem_ . It was further held by the Apex Court in para 24 of that decision that pragmatic and humanistic approach is warranted in regard to such special exigencies and the word “ _shall_ ” in clause (b) to Sec.313(1) of the Cr.P.C. is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time, adopt a measure to comply with the requirements in Sec.313 of the Cr.P.C. in a substantial manner. In this regard it has held by the Apex Court in para 25 of that judgment that if the accused (who is already exempted from personally appearing in the Court) makes an application to the court, praying that he may be allowed to answer Crl.M.C.697/17 - : 7 :- the questions without making his physical presence in court on account of justifying exigency, the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the matters dealt with therein. It will be profitable to extract paras 24 and 25 of the abovesaid judgment in Basavaraj R.Patil's case supra reported in (2000) 8 SCC 740, p. 754, paras 24 and 25 as follows: '24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved? 25. If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any Crl.M.C.697/17 - : 8 :- grievance on that score at any stage of the case.' 8. A reading of the impugned order will make it clear that none of these crucial and relevant aspects have been properly appreciated by the learned Magistrate in the light of the legal principles laid down by the Apex Court and by this Court as mentioned herein above. The offence alleged in this case is only under Sec.138 of the Negotiable Instruments Act. It is not in dispute that the petitioner is a lady aged 78 years. There are no grounds to disbelieve her version that she is suffering from old age ailments. Anx.3 series are the medical bills and prescriptions in that regard regarding the ailments suffered by her. When this is the position, it is all the more not understandable to this Court as to the rationale of the learned Magistrate to pass order on 7.1.2017 dismissing not only the absence application filed as Crl.M.P.No.46/ 2017, but also forfeiting the bail bond and issuing a NBW to a lady, who is more than 78 years old and in issuing notice to the sureties. Accordingly, the impugned order passed by the learned Magistrate on 7.1.2017 in the matter of forfeiting the bail bond of the petitioner and issuing NBW to her and issuing notice to her sureties will stand quashed. Crl.M.C.697/17 - : 9 :- 9. For the abovesaid reasons, this Court is convinced that learned Magistrate has not taken into consideration relevant and crucial aspects of the matter and has not appreciated the application and plea made by the petitioner, in the light of the legal legal principles laid down by the Apex Court. Accordingly, the impugned Anx.6 order is also set aside. The application of the petitioner referred to Anx.6 will stand restored to the file of the learned Magistrate. The counsel for the petitioner will be at liberty to place materials as in Anx.2, and 3 series by producing the same before the learned Magistrate, if those documents were not already brought on record. Thereafter, the learned Magistrate shall consider the application of the petitioner filed as Crl.M.P.No.2301/ 2016, in the light of the abovesaid rulings of the Apex Court and of this Court. The petitioner should also ensure that necessary affidavit is filed before the learned Magistrate in terms of the requirements of para 25 of the Apex Court judgment in Basavaraj R.Patil's case supra reported in (2000) 8 SCC 740. The Magistrate will thereafter grant a reasonable opportunity of being heard to the learned counsel appearing for the petitioner accused and the learned counsel appearing for the 1[st] respondent complainant and will pass Crl.M.C.697/17 - : 10 :- a well-considered order taking into account a humanistic and pragmatic approach in the matter. Orders in this regard should be passed without much delay. 11. After passing order, the learned Magistrate shall forward a copy of the said order to the Registry of this Court. 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