D. K. Jain, J. - (1.) CHALLENGE in this appeal, by special leave, is to the order dated 4th September, 2008 passed by a learned Single Judge of the High Court of Kerala in Crl. M.C. No. 1977 of 2007 whereby a number of general directions have been issued to all the criminal courts, which are called upon to hold trials, particularly in cases involving an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act"), as also in all other cases involving offences which are technical in nature and do not involve any moral turpitude.
(2.) IN view of the controversy at hand, it is unnecessary to state the facts giving rise to this appeal in detail, except to note that the present case arises out of a complaint filed under Section 138 of the N.I. Act. On being summoned by the Magistrate, the accused preferred a petition before the High Court under Section 482 of the Criminal Procedure Code, 1973 (for short "the Code"), inter alia, praying for dispensing with her personal appearance before the Magistrate. As afore-stated, the High Court, while allowing the said application, and permitting the accused to appear before the Trial Court through her counsel, felt that there was great need for rationalising, humanising and simplifying the procedure in criminal courts with particular emphasis on the attitude to the "criminal with no moral turpitude" or the criminal allegedly guilty of only a technical offence, including an offence under Section 138 of the N.I. Act. Relying on the decision of this Court in Bhaskar INdustries Ltd. v. Bhiwani Denim and Apparels Ltd. and ors. and of the Kerala High Court in Saseendran Nair v. General Manager; K.S.R.T.C. v. Abdul Latheef, Raman Nair v. State of Kerala; Noorjahan v. Moideen and Helen Rubber INdustries and ors. v. State of Kerala and ors. the learned Judge has issued the following 'rules of guidance', with a direction that these can and must certainly be followed by the court below in the instant case as also by all criminal courts which are called upon to deal with trials under Section 138 of the N.I.Act: "(i) Hereafter in all 138 prosecutions, the very fact that the prosecution is one under Section 138 of the Negotiable INstruments Act shall be reckoned as sufficient reason by all criminal courts to invoke the discretion under Section 205 Cr.P.C. and only a summons under Section 205 Cr.P.C. shall be issued by the criminal courts at the first instance. IN all pending 138 cases also applications under Section 205 Cr.P.C. shall be allowed and the accused shall be permitted to appear through their counsel. (ii) The plea whether of guilty or of innocence can be recorded through counsel duly appointed and for that purpose personal presence of the accused shall not be insisted. (iii) Evidence can be recorded in a trial under Section 138 of the Negotiable INstruments Act in the presence of the counsel as enabled by Section 273 Cr.P.C. when the accused is exempted from personal appearance and for that purpose, the personal presence of the accused shall not be insisted. (iv) Examination under Section 313(b) Cr.P.C. can be dispensed with under the proviso to Section 313(1) and if the accused files a statement explaining his stand, the same can be received by the court notwithstanding the absence of a provision similar to Section 233 and 243 Cr.P.C. in the procedure for trial in a summons case. The power and the obligation to question the accused to enable him to explain the circumstances appearing in evidence against him must oblige the court in such situation to accept and consider the written statement made by the accused. (v) To receive the judgment also, it is not necessary or essential to insist on the personal presence of the accused if the sentence is one of fine or the judgment is one of acquittal. After the pronouncement of judgment, the case can be posted to a specific date with directions to the accused to appear in person to undergo the sentence. By that date, it shall, of course, be open to the accused to get the order of suspension of the superior court produced before court. (vi) Where warrants are to be issued in a 138 prosecution, ordinarily a bailable warrant under Section 88 Cr.P.C. must be issued at the first instance before a non-bailable warrant without any stipulations under Section 87 Cr.P.C. is issued. (vii) The above stipulations can only be reckoned as applicable in the ordinary circumstances and are not intended to fetter the discretions of the court to follow any different procedure if there be compelling need. IN such event, the orders/directions of the Magistrate shall clearly show the specific reasons as to why deviations are resorted to. (viii) Needless to say, any person having a grievance that the above procedure has not been followed unjustifiably shall always have the option of approaching this Court for directions under Section 482 Cr.P.C. The Sessions Judges and the Chief Judicial Magistrates must also ensure that these directions are followed in letter and spirit by the subordinate courts. Commitment to human rights and the yearning to ensure that courts are user friendly are assets to a modern judicial personality and assessment of judicial performance by the superiors must make note of such commitments of a judicial officer. (fx) Even though the above directions are issued with specific reference to prosecutions under Section 138 of the Negotiable INstruments Act, they must be followed in all other cases also where the offence alleged is technical and involves no moral turpitude." Being aggrieved with the order granting a general exemption to the accused from personal appearance before the Trial Court, the complainant has filed this appeal. On 17th November, 2008, while granting leave in this matter, a Bench of two learned Judges referred the instant case to a Larger Bench, posing the following question for determination: "One of the questions which arises for consideration in this special leave petition is as to whether the High Court in exercise of its jurisdiction under Sections 482 and 483 of the Code of the Criminal Procedure and/or under Article 227 of the Constitution of India could issue guidelines directing all courts taking cognizance of offences under Section 138 of the Negotiable Instruments Act inter alia to invoke the discretion under Section 205 of the Code of Criminal Procedure and only with a further direction that summons under Section 205 shall be issued at the first instance. Keeping in view importance of the question involved as also the various decisions of this Court upon which the learned Judge of the High Court has placed reliance, in our opinion, we think that this is a matter which should be heard by a Larger Bench. It is directed accordingly." This is how the present appeal has been placed before this Bench.
(3.) HAVING heard learned counsel for the parties, we are convinced that the impugned order is unsustainable. Section 205 of the Code, which clothes the Magistrate with the discretion to dispense with the personal appearance of the accused, reads as follows: "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." ;