SANDEEP MEHTA, J. - (1.) The petitioner herein is facing trial in six criminal complaints pending in the Court of the Special Metropolitan Magistrate (N.I. Act Cases) No. 1, Jodhpur Metropolitan, filed by different complainants, who are represented by Mr. H.M. Saraswat and Mr. Deepesh Beniwal, Advocates.
(2.) The petitioner, who is a resident of Maharashtra was summoned through bailable warrants in each complaint. Upon service of the bailable warrants, he moved applications under Section 205 read with Section 445 Cr.P.C. in all the cases seeking exemption from personal appearance and liberty to file cash bail before the Trial Court. These applications have been rejected vide orders dated 31.8.2018 and 15.12.2018, which are assailed in these miscellaneous petitions, details of which are as follows :- JUDGEMENT_122_LAWS(RAJ)2_2020.htm
(3.) Mr. H.S. Shekhawat, learned Counsel for the petitioner, placed reliance on the Supreme Court decision in the case of M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Ors., [2001 All MR (Cri) 1961], to be specific the following observations made therein: 15. These are days when prosecutions for the offence under Section 138 are galloping up in Criminal Courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. 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 "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 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 co-operate in proceeding with the case? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that he Magistrate cane 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, bogs 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 to 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 the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. ;