'Just An Accused Before Court Of Law': Kerala HC Rejects Cardinal George Alencherry's Plea For Exemption From Personal Appearance In Trial Court

Observing that when exemption is sought for the first appearance, the standards to be applied should be more stringent, the Kerala High Court on Wednesday dismissed Cardinal Mar George Alencherry's petition seeking exemption from personal appearance in the private complaint cases filed against him before the Judicial First Class Magistrate Court, Kakkanad, for alleged illegal sale of the land belonging to the Church.

Justice Ziyad Rahman A.A. observed that the exemption from personal appearance contemplated under Section 205 Cr.P.C is an exception to the normal rule and subject to the discretion of the court. 

"...granting an exemption to the petitioner for the first appearance in this case, would send a wrong message to the Society as well. According to the petitioner, he is a religious head required to carry out several functions in various capacities and seeks exemption on that ground. In my view, the position that he holds would not make him entitled to any special privileges when he is brought before a court of law as an accused. The statutory mandate is over and above all the superiority the accused possesses or claims to have, by virtue of his position. Irrespective of his position, he is just an accused before the court of law, who is not entitled to claim any special privilege and is required to face the proceedings just like any other citizen. The provisions of Cr.P.C does not distinguish between ordinary citizens and persons holding superior positions in their religious, political, social, or other institutions".

The cases before the JFCM, Kakkanad were instituted against the petitioner alleging offences under Sections 406,423, 120B read with Section 34 of the IPC. Following issuance of summons, he had submitted applications before the JFCM Court under Section 205 Cr.P.C. seeking exemption from personal appearance even for the first time. However, according to the petitions before high court, the trial court kept the applications pending. 

On behalf of the petitioner, it was contended by Senior Counsel P. Vijayabahanu, that such personal appearance ought to be dispensed with since the petitioner is a senior citizen of 77 years of age, and also the head of Syro Malabar Church spread the world over with 55 lakh members.

It was also contended by the counsel that the identification of the petitioner was not necessary with respect to the evidence in the instant case, and that the petitioner had filed an undertaking stating that he would not dispute his identity, and would appear through a counsel and his counsel would be present on all posting dates. The court was also told that he did not have any objection in taking of the evidence in his absence, treating the presence of the counsel as his presence.

The counsel further argued that as per Section 205 of Cr.P.C., the Magistrate had ample power to grant exemption to the petitioner from appearing in person, and that power included the exemption for first appearance, as well. It was thus contended that since the petitioner had submitted applications in this regard, the Magistrate ought to have decided the same first, before insisting on personal appearance. 

On the other hand, the counsel for the private respondent argued that the petitioner did not have any vested right to seek exemption, and that the same was a matter of discretion for the concerned court.

Advocate V. Rajendran submitted that in the case, the Magistrate court had not rejected the prayer sought by the petitioner but only insisted on the appearance of the petitioner so that he could seek bail by offering sureties and executing bonds, thereby subjecting him to the jurisdiction of the court and making an assurance before the court through a bond to the effect that he would cooperate with the trial by abiding by the conditions imposed by the court.

It was further contended by the counsel that since the petitioner was holding an influential position in the Church, and most of the witnesses examined in the case also belong to the said Church, it was "absolutely necessary to execute a bond, undertaking to abide by the mandatory conditions contemplated under Section 437 Cr.P.C, including the condition that he shall not directly or indirectly influence the witnesses and shall not dissuade such witnesses from disclosing such facts to the court necessary for the case or shall not tamper with the evidence".

The counsel, however, conceded that they did not have any objection in granting of exemption to the petitioner from personal appearance, once the petitioner appears before the Court, and is released on bail upon executing a bond. 

Findings of the Court

The Court framed two questions in its decision

• whether the petitioner had any right to insist on the consideration of his application for personal exemption without his personal appearance for the first time
• whether the order directing the personal appearance of the petitioner passed by the Magistrate, before taking a decision submitted by the petitioner under section 205 of Cr.P.C was legally correct. 
  

Perusing Section 205 Cr.P.C. and various precedents, the court said the Magistrate has the discretion to exempt the accused from personal appearance, even at the time of issuance of summons, and that he could be permitted to appear through counsel if appropriate grounds are made out.

However, on perusing M/s.Bhaskar Industries Ltd v. Bhiwani Denim Apparels Ltd & Ors. (2001), the court said such discretion can be exercised only in rare cases where the Magistrate feels that personal attendance could be dispensed with due to far distance at which the accused resides or carries on business or on account of physical or other goods reasons.

The Court further noted that the exemption could be granted taking into account the hardship that is likely to be caused to the accused, and said that it would not be necessary to insist on the physical appearance of the accused on all posting dates, unless his appearance is absolutely necessary for the proceedings of the day.

Further, the Court said that in view of the mandatory nature of Section 437(3) Cr.P.C., the first appearance of the petitioner, was "not a mere formality but a necessity to ensure that the accused agrees to abide by the conditions stipulated therein, by executing a bond in this regard". 

"Though, exemption from personal appearance for the first appearance can be granted to the person accused of the aforesaid offences, it should be in exceptional circumstances, where extreme hardship is caused to the accused, or the accused is unable to appear before the court due to reasons beyond his control". 

The court noted that offences alleged against the petitioner include those under Sections 409,420 and 467 of the Indian Penal Code, which are punishable with imprisonment for seven years or more. It also observed that in some of the cases, the offences alleged against the petitioner are under Sections 406 and 423, read with 120B of IPC.

"Even though the punishment for the said offences is imprisonment for a term lesser than seven years, those offences come under Chapter XVII of IPC, and hence for that reason, that would come under Sub-Section (3) of Section 437 of the Cr.P.C. Therefore, the rigour of the said provision applies to all the cases of the petitioner," said the court.

While considering whether there were any reasonable or exceptional circumstances in the petitioner's case, the Court observed: 

"...he is admittedly attending meetings worldwide as part of administrative functions. This would indicate that he is not under any physical difficulty, which prevents him from appearing before the court at least on one occasion to take bail and execute the bond, agreeing the conditions in Sub Section(3) of Section 437 of Cr.P.C. The crucial aspect to note in this regard is that the petitioner ordinarily resides within the territorial jurisdiction of the Judicial First Class Magistrate Court, Kakkanad, where the cases are pending. It is reported that the distance between the place of the residence of the petitioner and the court is just about 3 Kms. Therefore, under any circumstances, it cannot be concluded that there exists exceptional circumstances which prevent the petitioner from attending the court in person, at least for the first time and executing bonds in tune with section 437(3) of the Cr.P.C".

The Court thus found that in the instant case, nothing precluded the Magistrate from insisting on the personal appearance of the petitioner before considering his application.

The petitions were thus dismissed by the Court on these grounds.

However, the Court clarified that the observations are only with respect to the prayer for exemption from the first appearance of the petitioner in person. 

"Once the petitioner appears and is released on bail on executing bonds, the applications submitted by the petitioner under Section 205 Cr.P.C. are to be considered without any delay, by taking into account the fact that the physical presence of the petitioner may not be required on all posting dates", the Court  said further

With regard to the respondent's submission that they have no objection to court's granting exemption after first appearance, the court said, "Since the proceedings pending before the Magistrate are instituted upon private complaint, the concession made by the 1st respondent is relevant and can be acted upon while deciding the said applications." 

Case Title: Cardinal Mar George Alencherry v. Joshi Varghese & Ors. 

Citation: 2022 LiveLaw (Ker) 581

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