[S.138 NI Act] Magistrate Has Judicial Discretion To Dispense Personal Appearance Of Accused: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has made it clear that a Magistrate dealing with a complaint under Section 138 of the Negotiable Instruments Act can waive personal appearance of the accused, if it finds that insistence of his personal appearance would itself inflict enormous suffering or tribulations to the accused.

Justice Javed Iqbal Wani observed,

"Such discretion needs to 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 appearance of the accused would only be in the interest of justice. However, the Magistrate who grants such concession to the accused must have to grant the same subject to the aforesaid riders as a matter of course."

The bench thus set aside the warrant and proclamation issued against the Petitioner, an accused under Section 138 NI Act who apparently faced death threats, and ordered the trial court to proceed in the complaint without seeking his personal appearance.

In the instant matter, after taking cognizance of the complaint, the Magistrate had summoned the accused petitioner who initially entered appearance through his counsel, and later sought exemption from personal appearance owing to death threats as evaluated by the CID wing of the J&K Police.

In view of the same the counsel for the petitioner had sought leave of the trial Court to appear on behalf of the petitioner for recording of the statement u/s 251 CrPC and also in further proceedings.

The Magistrate however issued warrants followed by a proclamation against the petitioner under Section 82 of the Code.

Justice Wani observed that in a summons case when the accused appears or is brought before the Magistrate, the particulars of the offences has to be put to him and asked whether he pleads guilty or has any defence to make and it is not necessary to frame formal charge by the Magistrate. The object of the section is to apprise the accused person with the particulars of the offence/s that are alleged against him and it is only to enquire from him whether he pleads guilty or has any defence to make, the court said.

Underscoring the law, that the appearance of the accused can either be personal or through his advocate, the court said that under Section 205 of the Code the Magistrate can dispense with personal attendance of the accused, if he sees reason so to do and permit him to appear by his pleader.

Expounding on Section 317 of the Code which prescribes for inquiries and trial being held in the absence of accused in certain cases, the court said that the said provision empowers the Magistrate to dispense with the personal appearance of the accused (provided he is represented by a counsel in a case) even for proceeding with further steps in the case, provided the accused gives an undertaking that he would not dispute his identity as the particular accused in the case, that a counsel in his behalf would be present in the Court and that he has no objection in taking evidence in his absence as this precaution is necessary for the further progress of the proceedings including examination of the witnesses.

Applying the position of law in vogue to the matter at hand the bench noted that the complaint before the Magistrate came to be filed on April 18th 2022 and almost a year has passed and trial has seen no progress.

Instead, during the period the personal appearance of the accused petitioner herein has been sought to be enforced by resorting to coercive measures by the Magistrate despite the fact that his counsel has been continuously appearing before him, the bench frowned.

In view of the legal position and the manner in which the magistrate had opted to proceed in the matter, the bench found it prudent to invoke its inherent power and accordingly the impugned orders passed by the trial court were set aside.

Case Title: Emaad Muzaffar Makhdoomi vs Vikar Ahmad Bhat

Citation: 2023 LiveLaw (JKL) 81

Coram: Justice Javed Iqbal Wani

Counsel For Petitioner: Mr Hakim Suhail Ishtiaq

Counsel For Respondent: Mr Saleem Jehangir

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