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TMI Blog2011 (1) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused preferred a petition before the High Court under Section 482 of the Criminal Procedure Code, 1973 (for short "the Code"), inter alia, praying for dispensing with her personal appearance before the Magistrate. As afore-stated, the High Court, while allowing the said application, and permitting the accused to appear before the Trial Court through her counsel, felt that there was 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 of only a technical offence, including an offence under Section 138 of the N.I. Act. Relying on the decision of this Court in Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd. & Ors. (2001) 7 SCC 401 1 and of the Kerala High Court in Saseendran Nair Vs. General Manager 1996 (2) KLT 482 ; K.S.R.T.C. Vs. Abdul Latheef 2005 (3) KLT 955 ; Raman Nair Vs. State of Kerala 1999 (3) KLT 714 ; Noorjahan Vs. Moideen2000 (2) KLT 756 and Helen Rubber Industries & Ors. Vs. State of Kerala & Ors. 1972 K.L.T. 794 , the learned Judge has issued the following `rules of guidance', with a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any stipulations under Section 87 Cr.P.C is issued. vii) The above stipulations can only be reckoned as applicable in the ordinary circumstances and are not intended to fetter the discretions of the court to follow any different procedure if there be compelling need. In such event, the orders/directions of the Magistrate shall clearly show the specific reasons as to why deviations are resorted to. viii) Needless to say, any person having a grievance that the above procedure has not been followed unjustifiably shall always have the option of approaching this Court for directions under Section 482 Cr.P.C. The Sessions Judges and the Chief Judicial Magistrates must also ensure that these directions are followed in letter and spirit by the subordinate courts. Commitment to human rights and the yearning to ensure that courts are user friendly are assets to a modern judicial personality and assessment of judicial performance by the superiors must make note of such commitments of a judicial officer. ix) Even though the above directions are issued with specific reference to prosecutions under Section 138 of the Negotiable Instruments Act, they must be followed in all other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See: S.V. Muzumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd. & Anr. (2005) 4 SCC 173) . Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else. 8. In Bhaskar Industries Ltd. (supra), this Court had laid down the following guidelines, which are to be borne in mind while dealing with an application seeking dispensation with the personal appearance of an accused in a case under Section 138 of the N.I. Act: "19. ...it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code." 11. Similarly, while it is true that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. In Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, this Court observed that: "So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umanistic approach in less serious offences, Thomas, J. speaking for the majority in a Bench of three learned Judges, explained the scope of clause (b) to Section 313(1) of the Code as follows : "The word "shall" in clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved? If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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