IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 Crl.MC.No. 1977 of 2007() ------------------------- STC.1635/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... PETITIONER: ACCUSED -------------------- MRS. JAIN BABU, W/O. BABU V.L., AGED 48 YEARS, SHALON HOUSE, PATHIRAPALLY, ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI RESPONDENTS: DEFACTO COMPLAINANT AND STATE ------------------------------------------- 1. K.J.JOSEPH, S/O. JOSEPH, AGED 49 YEARS, KANDATHIL HOUSE, PARAPPA VILLAGE, PARAPPA P.O., HOSDURG TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.AMJAD ALI SRI.ROBIN THOMAS PHILIP FOR R1 AMICUS CURIAE ADV.SRI.S.RAJEEV THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1977 of 2007 ---------------------------------------- Dated this the 4th day of September 2008 O R D E R Can there be a criminal offence involving no moral turpitude at all? Is the offence under Section 138 of the Negotiable Instruments Act one such offence? Is a person accused of an offence, in which moral contumaciousness is not significant, entitled to a more humane and less onerous trial procedure? Should an accused facing indictment under Section 138 of the Negotiable Instruments Act be compelled to endure the tedium and trauma of a regular elaborate criminal trial? Is it possible for the system to simplify procedure and achieve the legislative goals without inflicting such unnecessary inconvenience and difficulties on the indictee atleast in such less serious crimes? These questions are thrown up in this case where the petitioner, a woman, laments that she, who faces indictment under Section 138 of the Negotiable Instruments Act, is entitled to a fairer deal from the system. 2. The petitioner, a woman in her late forties, a housewife who has her husband employed abroad having two Crl.M.C.No.1977/07 2 children - a son and a daughter studying for the engineering course and the B.A.M.S course, and a permanent resident of Alappuzha has received summons from the Judicial Magistrate of the First Class, Hosdurg wherein she has been called upon to appear in person to face the indictment. She submits that she is innocent. The cheque has been misused. The petitioner complains that she is unable to proceed all the way to that distant court. She prays that she may be exempted from personal appearance and her counsel may be permitted to represent her and conduct the case. The counsel on her behalf submits that there is urgent need of general directions under Sections 482 or 483 of the Code of Criminal Procedure to save the petitioner as well as others similarly placed, from their predicament of being compelled to appear in person before court, getting enlarged on bail, executing bonds with sureties, personal appearance on all dates of posting, appearance for examination under Section 313 Cr.P.C and ultimately to receive judgment. The counsel contends that it is not necessary for a humane and user friendly system to resort to such cumbersome procedure. It is prayed that directions may be issued which will Crl.M.C.No.1977/07 3 help the petitioner as well as many others similarly placed facing identical predicament to save them of the unnecessary pain inflicted on them by such mindless injustice - of beaten track procedural hassles, trammels and trappings. 3. The contentions raised did appear to me to be impressive. Detailed arguments were heard in identical cases also in which the same question had arisen for consideration. Adv.Sri.G.Priyadarsan Thampi appearing for the petitioner has advanced this contention with conviction. Sri.N.Ratheesh who appears in a similar matter W.P.C 20721/2007 has also advanced his arguments. Perceiving the need for assistance of an amicus curiae Sri.S.Rajeev, a promising young counsel was requested to assist the Court. Detailed arguments have been advanced. All counsel pray that directions may be issued which shall bind all courts so that procedure in the trial of 138 (and similar) cases in the State can be simplified and indictees can be saved of the unnecessary and avoidable trauma and tedium. 4. First of all the learned counsel have drawn my attention to various precedents having a bearing on the question. I shall advert to them specifically later if and when necessary. Crl.M.C.No.1977/07 4 But it must now be stated that my attention has been drawn to the following binding precedents. 1. M/s.Bhaskar Industries Ltd. v. M/s.Bhiwani Denim and Apparels Ltd. and Others [2001(3) KLT 307 SC] 2. Helen Rubber Industries & Others v. State of Kerala & Others [1972 KLT 794] 3. Dinesan v. Baby [1981 KLT SN 65 Case No.120] 4. Mathew v. State of Kerala [1986 KLT 128] 5. Bhanujan v. Jayabhanu [1993(2) KLT 889] 6. Raman Nair v. State of Kerala1999(3) KLT 714 7. Alice George vs. Deputy Superintendent of Police [2003(1)KLT 339] 8. Sasikumar v. State of Kerala [2007(3) KLT SN 48 (C.No.64) 5. The learned counsel submit that there is urgent necessity to clarify that the very fact that the offence is one under Section 138 of the Negotiable Instruments Act must itself be reckoned as sufficient reason by the Magistrate to dispense with the personal attendance of the accused. The learned counsel rely on Section 205 Cr.P.C which reads as follows: Crl.M.C.No.1977/07 5 205. 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.” (emphasis supplied) 6. The learned counsel submit that the line of decisions referred above make it clear that powers under Section 205 Cr.P.C to exempt an accused from personal appearance are to be invoked by a Magistrate when the offence alleged is technical in nature or does not involve moral turpitude. The learned counsel thereupon relies on the two decisions of this court to contend that the offence under Section 138 of the Negotiable Instruments Act is definitely one involving no moral turpitude. They are Saseendran Nair v. General Manager [1996(2) KLT 482] and K.S.R.T.C v. Abdul Latheef [2005(3) KLT 955]. Both decisions were rendered by Division Benches exercising jurisdiction in service law. But it has been clearly held that an offence under Section 138 of the Negotiable Instruments Act Crl.M.C.No.1977/07 6 does not deserve to be described as an indiscretion involving moral turpitude. The learned counsel hence contend that the very fact that the offence is one punishable under Section 138 of the Negotiable Instruments Act must itself persuade the courts to invoke the jurisdiction under Section 205 Cr.P.C to dispense with the personal appearance of the accused. 7. The crux or the gravamen of the offence under Section 138 of the Negotiable Instruments Act is the dishonour of the cheque on the ground of insufficiency of funds. But the right to prosecute would accrue only if a demand made for payment does not result in payment of the amount within the stipulated time. In this view of the matter, it is a technical offence and virtually the core of the liability to be prosecuted for the offence is the inability/refusal of a person to make payment when the demand is made consequent to dishonour. In this view of the matter, I am satisfied that the offence under Section 138 of the Negotiable Instruments Act is both technical as also one involving no moral turpitude. 8. Crimes traditionally are more serious indiscretions in human behaviour committed by individuals which the sovereign Crl.M.C.No.1977/07 7 wants to avoid, eliminate and deter by infliction of punishment. The sovereign prerogative of infliction of punishment - of deprivation of life, liberty and property (and infliction of pain in some crude systems), is to be resorted to only when the indiscretion alleged is grossly contumacious and culpable. It is in this view of the matter that traditional criminal law insisted that mensrea - a guilty mind, must be there in all crimes. Crimes of yester years could never be innocent and guilt free infractions of the expected ideal code of human behaviour. One needed no knowledge of the laws in the past to ensure that he does not trespass into the zone of crime. Inherent and entrenched human concepts of righteousness in the past ensured that a person shall not commit the traditional crimes. He did not have to open law books to know that he should not murder another; that he should not maim another; that he should not deceive another; that he should not thieve another's property or that he shall not commit adultery. Traditional law making insisted that the graver indiscretions alone can be declared to be crimes and they alone can attract punishment. In democratic law making also public opinion - norms prevalent among the polity, should reckon the Crl.M.C.No.1977/07 8 conduct as so abhorrent and offensive before such conduct can be held to amount to and be declared a crime and worthy of the consequence of punishment - of deprivation of life, liberty and property. 9. Every criminal of yester years was undoubtedly a moral offender. He was treated with disdain and contempt. He was assumed to be a gross deviant. Society had to be protected from him. His place was prison - whether as an under trial or later. If he were to come out he was likely to be a menace to society. He therefore must offer bail. He must be personally present before court on all dates. An attitude of distrust, doubt and suspicion against him was always there which essentially arose from the gravity of the deviant behaviour - crime, which was alleged against him. This negative attitude against the criminal can be seen in all criminal law systems - native and alien, of the past. 10. But modern societies have changed their attitudes to the offender. 'Hate the crime and not the criminal' is the axiom of the modern criminal jurisprudence. Attitude of the law and system to the criminal is changing. The justice delivery system Crl.M.C.No.1977/07 9 and the courts are adopting a more humane, reasonable and compassionate attitude to even the traditional criminal - both in substantive and procedural aspects. 11. There is one more important reason why the attitude of the system, the law, the courts and the society to the criminal must change. Crimes today - the statutory crimes, are qualitatively different indiscretions. Modern societies in their quest to ensure change of societal attitudes, behaviour and culture have been freely resorting to the tool of the penal law for social engineering. Not only to prevent grossly abhorrent behaviour but also to bring about future healthy changes of human attitudes and behaviour in societies, modern sovereigns have been making use of the laws - even the penal law. Law is a powerful tool of social engineering and societal transformation. The impatient elite in society who dream of ideal refined human behaviour in the polity have been insisting on conduct being made culpable even before that norm of behaviour is wholly accepted and entrenched in society. There is consequent diffidence among the polity. My inherent sense of morality acceptable to the society around me is not at times sufficient to keep me away Crl.M.C.No.1977/07 10 from the zone of crime. I must read the law books and update myself on the statutes and rules so that I do not become a criminal. It may be inevitable; but the plight of the morally innocent individual caught in the dilemma cannot be ignored by the system. 12. Non-maintenance of registers in employment, disposal of waste in non-specified areas, giving your child in marriage before attainment of a specific age, inability/refusal to pay money due under a dishonoured cheque, unnecessary and uncharitable reference to the caste of an individual in the course of conversation in public view and a host of other pieces of conduct which till yesterday was not even morally wrong or was only an innocent indiscretion is today made a criminal offence exposing the citizen to the risk of being branded a criminal. Consequently he is exposed to unfriendly and hostile procedural wrangles. This is unjust. This is unfair. This is unreasonable. Correct the deviant conduct by imposing the punishment stipulated by law. But avoid the tedium and trauma of an oppressive procedure against the “innocent criminal”. Be humane to him atleast in the manner in which he is treated before he is punished or exonerated. Do not oblige him to be in Crl.M.C.No.1977/07 11 the same bracket as the morally deviant - ordinary traditional criminal. Just, fair and reasonable procedure, a procedure which is not capricious, unreasonable, arbitrary and oppressive may be followed. Right to life under Article 21 of the Constitution of India must oblige the courts also to follow a procedure which is just, fair and reasonable while dealing with such criminals. If that is accepted, the unnecessary insistence on personal appearance before courts, entering on bail, executing bond with sureties, non-bailable warrants chasing him if he does not appear on all dates of posting, the personal appearance for 313 examination, appearance to receive judgments etc. can and must be avoided, submit the learned counsel. 13. I find the submissions to be absolutely justified. There is 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 only of a technical offence. Without any hesitation I include Section 138 of the Negotiable Instruments Act in that category of offences. Crl.M.C.No.1977/07 12 14. The question then to be considered is whether dispensing with the personal appearance of an accused throughout the trial in a prosecution under Section 138 of the Negotiable Instruments Act (a summons trial) would create any difficulties in the progress of the cases and would render a just, fair, expeditious and efficient trial difficult or impossible. I shall consider the progress of a 138 prosecution from the moment of cognizance to the execution of the sentence in an attempt to find out whether a direction to dispense with the presence of an indictee in a 138 proceedings would create any difficulties or insurmountable obstruction to the trial. 15. Cognizance is to be taken in a private complaint under Chapter 15 when complaints are made to Magistrates. After examination of the complainant and his witnesses, if any, present under Section 200 Cr.P.C or after proceeding to the enquiry under Section 202 Cr.P.C, a decision is to be taken under Section 203 Cr.P.C whether there is sufficient ground for proceeding. If there is no sufficient ground for proceeding, the complaint entails dismissal under Section 203 Cr.P.C. But if there are sufficient grounds for proceeding, issue of process Crl.M.C.No.1977/07 13 results under Section 204 Cr.P.C. Under Section 204 Cr.P.C in a summons case, a summons alone shall be issued for procuring the attendance of the accused. It is at this stage that Section 205 Cr.P.C comes into play. A Magistrate, after taking cognizance, when he chooses to issue summons in a prosecution under Section 138 of the Negotiable Instruments Act, must under Section 204(1)(a) Cr.P.C choose to issue only a summons and at that stage Section 205 Cr.P.C comes into play. Instead of issuing a summons obliging the accused to appear in person, the Magistrate can, “if he sees reasons so to do”, dispense with the personal attendance of the accused and permit him to appear by his pleader. At the stage of issue of summons in all prosecutions under Section 138 of the Negotiable Instruments Act, Section 205 Cr.P.C can certainly be followed by the learned Magistrates in their discretion. There is no impediment whatsoever for a fair and efficient trial if only a summons under Section 205 Cr.P.C is issued in all prosecutions under Section 138 of the Negotiable Instruments Act. 16. Even assuming that a normal summons was issued under Section 204 Cr.P.C, it is by now trite that at any later Crl.M.C.No.1977/07 14 stage before actual appearance of the accused before the learned Magistrate or after such appearance, powers under Section 205 Cr.P.C can be invoked. If there be any doubt on this aspect, it is only necessary to consider paragraph 3 of the decision rendered by Hon'ble Mr.Justice K.V.Sankaranarayanan in Raman Nair v. State of Kerala [1999(3) KLT 714] which I extract below. “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 to the extent that warrants issued can be withdrawn and exemption granted under S.205 Cr.P.C on application of the accused.” (emphasis supplied) 17. It is thus very clear that at the time of issuing summons or at any time thereafter either before or after the Crl.M.C.No.1977/07 15 personal physical appearance of the accused before the court and even when a warrant of arrest had earlier been issued powers under Section 205 Cr.P.C can be invoked. 18. We now proceed to the next stage. The accused has to enter appearance through counsel in response to the summons issued under Section 205 Cr.P.C. After the accused enters appearance, particulars of offence must be read over to the accused under Section 251 Cr.P.C and his plea has to be recorded. The plea can be either one of guilty or one of not guilty. The next question is whether personal presence of the accused is invariably necessary for recording the plea of the accused. 19. This question does not also admit of any doubt now in the light of the decision of this court in Noorjahan v. Moideen [2000(2)KLT 756]. Hon'ble Mr. Justice R.Rajendra Babu, after adverting to the precedents on the point, had categorically held in paragraph 8 that even when the plea is one of guilty, such plea of an accused exempted under Section 205 Cr.P.C, advanced on his behalf by the counsel can be taken. The principle is stated in the following words. Crl.M.C.No.1977/07 16 8. “I am in full agreement with the above view taken by the Calcutta and Delhi High Courts. The above decisions would make it clear that in summons cases when the personal attendance of the accused is exempted under S.205 Cr.P.C, the plea of the counsel can be taken for and on behalf of the accused even if the plea is one of guilty.” (emphasis supplied) 20. There can hence be no doubt that the plea of an accused exempted under Section 205 Cr.P.C in a prosecution under Section 138 of the Negotiable Instruments Act (a summons case) can be recorded through his counsel. There can be no semblance of doubt on this aspect of the matter in the light of the above said binding precedent. 21. We then come to the stage of recording evidence. Section 273 Cr.P.C mandates that evidence must be recorded in the presence of the accused. But the Section itself hastens to add that when his personal attendance is dispensed with, such evidence can be recorded in the presence of his pleader. Obviously, the reference was to dispensation of the personal presence of the accused under Section 205 Cr.P.C or Section 317 Cr.P.C as the case may be. For clarity on this aspect, I extract Section 273 Cr.P.C below. Crl.M.C.No.1977/07 17 273. “Evidence to be taken in presence of accused.-Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” (emphasis supplied) 22. In a case where personal appearance is dispensed with under Section 205 Cr.P.C, it is not normally necessary to go to Section 317 Cr.P.C and I am hence not adverting to the provisions of Section 317 Cr.P.C in any greater detail. In a prosecution under Section 138 of the Negotiable Instruments Act ordinarily and normally a dispute regarding identity of the indictee is not likely to arise. His personal presence for the purpose of identification will normally be unnecessary. In an exceptional case where such dispute of identification is posed, appropriate direction under Section 205(2) Cr.P.C can always be issued by the court. 23. It is now evident that the plea can be recorded and the evidence can be introduced in the absence of the accused and in the presence of his counsel, if he is exempted under Section 205 Cr.P.C. We then come to the next stage - of examination under Section 313(1)(b) Cr.P.C. The Section obliges that in every Crl.M.C.No.1977/07 18 enquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the courts shall, after the witnesses of the prosecution have been examined and before he is called on for his defence, question him generally on the case. Precedents mandate that this is an invariable requirement in all cases; but the proviso to Section 313(1) Cr.P.C adds that in a case where the presence of the accused has already been dispensed with, the court may also dispense with his examination under Clause (b). I extract below Section 313(1) and its proviso. “313.Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).” (emphasis supplied) 24. It therefore is evident that in a prosecution under Crl.M.C.No.1977/07 19 Section 138 of the Negotiable Instruments Act where personal appearance of the accused has been dispensed with under Section 205 Cr.P.C, his examination under Section 313(1)(b) Cr.P.C can also be dispensed with. While exercising the discretion under the proviso, the Magistrate may direct or permit the filing of a statement, if any, by the accused to enable the accused to explain the circumstances against him. The interests of justice can be eminently satisfied by resort to such a course. 25. At the stage of defence evidence, there is absolutely no obligation for the accused to personally appear. Section 273 Cr.P.C will not apply at the stage of defence evidence as such evidence is not against the accused. At any rate, Section 273 Cr.P.C permits exemption of the accused while evidence is recorded. 26. We then come to the stage of pronouncement of judgment. Section 353 Cr.P.C in Chapter 27 of the Code of Criminal Procedure deals with procedure to be followed for the pronouncement of judgment. Section 353(5) declares that if the accused is in custody, he shall be brought up before court for the pronouncement of judgment. Sub-Section 6 which I extract Crl.M.C.No.1977/07 20 below deals with the situation where the accused is not in custody. 353. Judgment .- “(6): If the accused is not in custody,