Criminal Trial Can't Proceed Ex-Parte, Evidence Can't Be Received In Absence Of Accused Except U/S 299 CrPC: Karnataka High Court

A single judge bench of Justice Sreenivas Harish Kumar said,

"Speedy trial does not take the meaning of jumping the stages in a criminal trial."

The court allowed the revision petition filed by one G.H.Abdul Kadri and set aside the judgment of conviction and sentence under section 138 of the Negotiable Instruments Act, passed by the Addl. Civil Judge convicting the accused ex–parte. The order was upheld by the Prl. District and Sessions Judge.

The bench referring to section 273 of CrPC observed, "It is very clear that the evidence must be taken in the presence of the accused and it may be recorded in the absence of the accused if it is expressly provided in Cr.P.C. If the personal attendance of the accused is dispensed with, evidence may be recorded in the presence of the pleader of the accused."

Further, "The only provision that provides for recording of evidence in the absence of the accused is section 299. Therefore it is clear that except under Section 299, evidence cannot be recorded for any other reason in the absence of the accused."

Case Details:

Petitioner G.H.Abdul Kadri, had approached the court challenging the orders of the magistrate court and the principal district and sessions judge. The petitioner being the accused in all these criminal cases faced prosecution for the offence under section 138 of the Negotiable Instruments Act, as the cheques issued by him for discharging his liability in connection with the loan said to have been obtained by him from the respondent were dishonoured for want of sufficient funds in his bank account.

The magistrate court held in all the cases that the petitioner did not appear before the court in spite of service of summons on him. Therefore, following the judgment of the Supreme Court in the case of Indian Bank Association and Others vs Union of India [(2014) 5 SCC 590], it accepted the affidavits filed in all the cases by the respondent, dispensed with the statement of the accused under section 313 CrPC and then proceeded to convict and sentence the petitioner in all the cases.

The sessions Judge in appeal held that from the evidence given by the complainant and the documents produced by him, a case against the petitioner/accused was made out. It was observed that as it is held in various judgments that offence under section 138 is a document based offence and therefore there is no need for waiting for the accused to appear before the court, the trial court is justified in convicting the petitioner in all the cases.

Petitioners arguments:

Senior Advocate P P Hegde appearing for the petitioner submitted that criminal trials must be held in the presence of the accused unless the accused seeks exemption of his personal appearance.

Further he said that Section 143 of the Negotiable Instruments Act provides for summary trial and it is clearly mentioned in the said section that the procedure prescribed in sections 262 to 265 of CrPC shall apply for conducting trials. In this view, recording the plea of the accused under section 251 of CrPC is compulsory. Since the trial court has not followed this procedure, the judgment of conviction violates the concept of due procedure of law found in Article 21 of the Constitution of India.

He also contended that if the accused does not respond to the summons issued by the Magistrate, his presence must be secured by issuing warrant or proclamation. The judgment of the Supreme Court in Indian Bank Association does not state that the trial can be held in the absence of the accused, there is no concept of placing the accused ex-parte as is prevalent in civil trials. Examination of the accused under section 313 CrPC is also mandatory and it can be dispensed with only in summons trials if the personal appearance of the accused is exempted. This is not the case here.

Respondent submitted:

Advocate Shobhith N Shetty said that Summons was served on the accused but since he did not appear before the court, the trial court had to proceed further in his absence.

Findings:

At the beginning itself the court remarked, "The judgment of the trial court is a very good example as to how justice suffers if the judges blindly place reliance on case law without understanding the true purport of the principles laid down in those decisions with utter disregard for the first principles of law."

It then perused the judgment of the magistrate court and said the judgment of the Supreme Court in the case of Indian Bank Association, the trial court adopted the affidavit filed by the respondent at the inception as sufficient compliance of evidence to be adduced post summons stage, and of course there is no legal infirmity in it.

It observed, "But the trial court has proceeded on the ground that the Hon'ble Supreme Court in the case of Indian Bank Association has held that there is no need to secure the presence of the accused. This is the wrong committed by the trial court. If the entire judgment of the Supreme Court in the said case is read, no where it is found that in case the accused fails to appear before the court having received summons, the trial can be held in his absence."

Referring to the observation made in the apex court judgment, it said,

"It clearly indicate that summons must be sent to the proper address of the accused and that the summons may also be served by sending it to the email address of the accused; and in appropriate cases, the assistance of the police or the near by court may be sought for service of summons. It is further stated that if the summons served is received back unserved, immediate follow up action must be taken. That means, if summons is not served, the reason for non-service must be ascertained and then summons may be re-issued or a warrant may be issued. This para does not indicate that if the accused does not appear before the court in spite of service of summons on him, the trial can be held in his absence."

Relying on section 273 of CrPC the bench said,

"In the case on hand, it is not in dispute that the petitioner did not appear before the court. If the petitioner did not appear having received summons, the trial court ought to have issued a warrant and then proclamation for securing his presence. The records do not disclose any such effort being made by the trial court to secure the presence of the accused."

It added, "This is the blatant error that can be pointed out from the judgment of the trial court. It is trite to observe here that in the Code of Criminal Procedure, there is no provision for keeping an accused ex parte similar to one found in Code of Civil Procedure which provides for placing a defendant ex parte if there is due service of summons or notice on him."

As regards the trial court dispensing with the examination of the accused under section 313 of Cr.P.C, placing reliance on the judgment of the Apex court in the case of Indian Bank Association, Basavaraj R Patil and Others vs State of Karnataka and Others [(2000) 8 SCC 740] and that of the coordinate Bench of this court in M/s Cheminova India Limited vs Jajee Pesticides and Others [ILR 2013 KAR 5395], the bench said,

"Indian Bank Association does not discuss the aspect of examining the accused under section 313 Cr.P.C; and it has given certain directions for the trial of the cases under section 138 of Negotiable Instruments Act. In Basavaraj R Patil, the discussion pertains to an alternative mode of obtaining statement of the accused without securing his personal presence."

Further it said, "The facts in Cheminova India Limited show that the trial court dispensed with the examination of the accused under section 313 Cr.P.C, but that aspect did not actually emanate for discussion before the coordinate bench. The scope of section 145 of Negotiable Instruments Act was the point of discussion and nowhere it is held that examination of the accused under section 313 Cr.P.C can be dispensed with."

Following which it opined, "Thus it is clear that both the courts below have misapplied the principles laid down in the above referred decisions."

Accordingly it allowed the revision petition and setting aside the judgment of the trial court, remanded the matter back to the magistrate court for disposal afresh.

Amendment to CrPC required to record evidence in absence of accused.

The bench expressed if for any reason the presence of the accused cannot be secured despite exhausting every mode of service, especially in relation to offences under special laws, including Negotiable Instruments Act and if evidence is to be recorded in the absence of the accused, law requires to be amended.

It said,

"The legislature must think of bringing suitable amendment to the Code of Criminal Procedure or to the special law to enable the court to conduct the proceedings in the absence of the accused. The amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them."

Case Title: G.H.Abdul Kadri v. Mohammed Iqbal

Case No: Crl.RP.No.1323/2019

Citation; 2022 LiveLaw (Kar) 180

Date of Order: 24TH DAY OF MAY, 2022

Appearance: Senior Advocate P.P.Hegde a/w advocate H.Pavithra for petitioner; Advocate Shobhith N.Shetty for respondent.

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