Topic: Smt. Geeta Sethi vs The State C.B.I.

Smt. Geeta Sethi vs The State (C.B.I.)
Equivalent citations: 2001 IVAD Delhi 397, 2001 CriLJ 2659, 91 (2001) DLT 47, 2001 (58) DRJ 713 - Bench: R Chopra - Date of judgment: 12 March, 2001

ORDER R.C. Chopra, J.
1. This petition under Section 482 of the Code of Criminal Procedure is directed against an order dated 10.11.2000 passed by learned ACMM rejecting petitioner's application for exemption from personal attendance during trial.

2. I have heard learned counsel for the petitioner and learned counsel for the respondent.

3. The petitioner is facing trial under Section IPC read with Section 120B IPC and Section 5 of the Imports & Exports (control) Act 1947 on the basis of a complaint filed by the Chief Deputy Controller of Imports and Exports, New Delhi. She was admitted to bail in the year 1993. The case is still at the stage of pre-charge evidence. The prosecution has cited 140 witnesses out of which only 24 have been examined so far. As such it is manifestly clear that the Trial still has to go along way before reaching its culmination.

4. Learned counsel for the petitioner submits that on 1.9.2000 when the case was fixed for pre-charge evidence the petitioner, who is a patient of Bronchial Asthma and Rhd. ArthrIT is suddenly fell ill and as such could not appear before the Court. Her application seeking exemption was rejected and non-bailable warrants were issued against her. Her application for cancellation of warrants was pending for 27.9.2000 but that morning itself she was arrested in pursuance of non-bailable warrants. She had to remain in custody for about a week and was released on bail only when orders were passed by the High Court. Learned counsel for the petitioner submits that a large number of witnesses still remains to be examined at the stage of pre-charge as well as post charge evidence. The petitioner who is an old lady and is suffering from various ailments is not required to be present in person on all the dates as she is not disputing her identity. He submits that there was no good reason for declining her request for exemption from personal appearance. It is prayed that the impugned order may be set aside and she be exempted from personal attendance.

5. Learned counsel for the respondent has opposed the petition mainly on the ground that on account of absence of the petitioner the proceedings before the Trial Court have been getting delayed. He also argues that the mere fact that the petitioner is a lady and is suffering from some ailments is not a sufficient ground for exempting her form personal attendance during the trial.

6. Section 317 of the Code of Criminal Procedure which empowers the Courts to exempt an accused from personal attendance during enquiry or trial reads as under:

"317. Provision for inquires and trial being held in the absence of accused in certain cases -(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

7. This provision sufficiently empowers a Judge or a Magistrate to dispense with the personal attendance of an accused and permit him to appear through his pleader and lays down that the Judge or Magistrate may in his discretion at any stage of the proceedings direct the personal attendance of the accused, if necessary. The provision does not prescribe parameters or any hard and fast rule for the exercise of the discretion in the matter of grant or refusal of exemption presumably of the reason that it is a discretionary power enabling a Judge or Magistrate to grant exemption to the accused n an appropriate case. However, the discretion has to be exercised judicially, considering the facts and circumstances of each case.

8. Before adverting to the prayer for exemption of the petitioner in the present case, this Court would like to observe that the Courts administering justice on criminal side must always remain alive to the "presumption of innocence" which is the hall- mark of criminal jurisprudence. Every accused clothed with the presumption of innocence is entitled to a just, fair and decent trial. It should be remembered that a criminal trial is not aimed at humiliating or harassing an accused. The only object of a trial is to determine the guilt or innocence of an accused.

9. The crowded corridors and pathetic working conditions in most of our District Courts are far from satisfactory primarily on account of heavy work load and lack of adequate infrastructure. Efforts are on to improve the situation but still we have a long way to go. If resources permit more Courts, better facilities, time saving gadgets, legal guidance counters and other essential conveniences must be provided in all District Courts so that the accused, complainants or witnesses coming there do not feel depressed and disgusted. Harassment and humiliation of anyone in Courts is anathema to the Constitutional promise of justice according to law.

10. There cannot be any straight jacket formula for adjudicating request for personal exemption. Every request has to be considered on its own merits. As per Section 273 of the Code of Criminal Procedure, the general rule is that a trial should be in the presence of an accused but Section 317 of the Code carves out an exception to the rule. The presence of an accused in a criminal trial is certainly important and must be insisted upon if the offence is serious and the accused is likely to be punished severely so that in his absence his defense is not jeopardised. However, accused involved in summons cases, cases under special Acts and offences where violations are statutory, which sometimes do occur inspite of best of intentions, the Courts must not treat the offenders like hardened criminals. Where a woman, old, sick or infirm accused is involved in some petty, minor or economic offence and his identity is not in dispute or he does not intend to raise any dispute regarding his identity, his presence may not be insisted upon as it serves no purpose whatsoever. If some other family member of a woman, old, sick or infirm accused is also facing trial as co-accused and the Court is satisfied that he would properly look after the defense of the accused applying for exemption, the discretion should be liberally exercised in favor of allowing exemption from personal attendance subject to the condition that he does not dispute his identity and gives an undertaking that he shall not claim any prejudice on account of absence during trial. These observations, however, should not be construed to mean that in every case, the Court is bound to exempt an accused.

11. The exemption of an accused in a way helps the prosecution also because for want of exemption, his every absence results in an adjournment and delays the trial. A complainant also should be liberally exempted from personal attendance where the complaint can be pursued by someone else on his behalf.

12. Coming to the facts of the present case, it appears that the petitioner is an old and sick lady and her absence on certain occasions has already resulted in the delay of trial. Had she been on exemption some of the adjournments might have been avoided. Therefore, this Court is of the considered view that Trial Court should have exercised its discretion for grant of exemption in her favor.

13. The petition is, therefore, allowed. The impugned order is set aside and the Trial Court is directed to grant her exemption from personal attendance during the trial subject to her filing a duly signed application for exemption authorising a Counsel to appear on her behalf with an undertaking that she shall not dispute her identity, shall not claim any prejudice on account of absence during trail and in case her Counsel does not appear when the case is taken up, the trial Court shall be at liberty to withdraw her exemption and proceed against her in accordance with law treating her absent from the proceedings.