Judgement

The above revision petition is directed against the order passed by the City Magistrate, Bangalore, on 30-8-1967 refusing to extend exemption to appear before the Court till the disposal of the case.

2. The petitioner is the 4th accused in a fake note case pending on the file of the City Magistrate, Bangalore. The allegation against him is that he purchased 4508 counterfeit currency notes of 10 rupee denomination valued at Rupees 45,080/- from A-2 and A-3 between 8-4-1965 and 13-8-1965 which constituted an offence punishable under Sec. 489-B, I. P. C. Further the act of A-4 in allowing and giving facilities to A-2 and A-3 in his press at Bangalore to cut the said counterfeit currency notes into sizes which constitutes a part of the process of counterfeiting currency notes and thereby abetted the cutting of the said counterfeit notes in his press at Bangalore by A-2 and A-3 between 10-8-1965 and 13-8-1965 which constitutes an offence under S. 489-A read with S. 109, I. P. C. Further the allegation is that he was in possession of the abovesaid counterfeit currency notes in his Mutt bungalow at Bangalore between 13-8-1965 and 22-2-1966 knowing them to be counterfeit and intended to use them as genuine or that the same may be used as genuine which constitutes an offence punishable under Section 489-C, I. P. C.

3. After the charge sheet was filed before the Court, the court issued summons to A-4 to appear before the court in person or through his pleader. After the service of summons, the accused appeared through his pleader on 19-9-1966 and was exempted from his appearance for that day. Again on 3-10-1966 the accused was present in the court and he was bound over with a surety.

4. On 17-10-66 A-4 was exempted from his appearance from the Court till the stage of recording the evidence. Exemption continued till 3-4-67 on which date the counsel for A-4 was absent and the court ordered non-bailable warrant to A-4. Later on the same day A-4s counsel appeared and filed an application for recalling the warrant. The Court ordered not to issue warrant against A-4. Till 30-8-67 A-4 was exempted from his appearance before the Court; on that day an application was filed on behalf of A-4 to extend the exemption till the disposal of the case. The Court while disposing of the said application was of the opinion that in a case of this nature while recording evidence it is absolutely necessary that the accused should be present. Further, the Court was also of the opinion that under Section 288, Cr. P. C. evidence recorded under Chapter 18 can be read as evidence by the trial court if the evidence is recorded in the presence of the accused. In this view of the matter the court did not grant the request made on behalf of A-4 to exempt him from appearance for that day and adjourned the case to 19-9-1967. A-4 being aggrieved by the order dated 30-8-67 refusing to extend exemption till the disposal of the case, has filed the above revision petition.

5. Mr. B. Ramachandra Rao, learned Advocate for the petitioner has firstly contended that there is no difficulty for the prosecution witnesses to identify the accused as they identify him by name and not by his person. Secondly he contended that the evidence recorded by the Committal Magistrate in the mode prescribed under Section 353, Cr. P. C. can be treated as evidence under Section 288, Cr. P. C. Thirdly he contended that provisions of Sections 205, 353 and 540-A, Cr. P. C. must be liberally construed as they are intended to safeguard the interest of the accused. He added that when once an exemption is granted either under Section 205 or under Section 540-A, Cr. P. C. it must subsist throughout the duration of the enquiry. Fourthly he contended that having regard to the petitioners position as the head of the Mutt having responsibility of performing poojas according to the shastras throughout the day, his personal attendance must be dispensed with. He further contended that the learned Magistrate has not considered the grounds mentioned in the application while rejecting the application for extension of exemption till the disposal of the case. In support of his contentions, Mr. Ramachandra Rao relied upon the various sections of the Code of Criminal Procedure and also number of decisions of various High Courts.

6. The learned Public Prosecutor appearing for the State contended that A-4 was exempted by an order passed by the Magistrate on 17-10-1966 till the stage of recording the evidence and that, therefore, he urged that the order granting exemption cannot be construed to mean that it was granted for the duration of the enquiry. Secondly, he contended that provisions of Section 288, Cr. P. C. must be strictly complied with before evidence contemplated under Section 288 is used as substantive evidence. Thirdly, he contended that the reasons given by the learned Magistrate in exercise of his discretion are neither incorrect nor perverse in refusing to grant extension of exemption till the disposal of the case. Therefore, he submits that the order in question does not call for interference by this Court.

7. The short question for decision is whether the learned Magistrate has properly exercised his discretion in refusing to grant further extension of exemption from appearance before the Court to the petitioner.

8. The learned Magistrate has refused to extend the exemption to the petitioner from his appearance before the Court in the disposal of the case on the ground that in cases of this nature while recording the evidence, the presence of the accused is absolutely necessary. Another reason given by the learned Magistrate is that under Section 288 Cr. P. C. evidence recorded under Chapter 18 can be read as evidence by the trial court if the evidence is recorded in the presence of the accused. The question for determination is whether the reasons given by the learned Magistrate in refusing to extend the exemption from appearance before the Court are valid in law.

9. The first contention of Mr. Ramachandra Rao is that there is no difficulty for the prosecution witnesses to identify the accused as they identify him by name and not by his person. Mr. Ramachandra Rao urged that the witnesses who identify the petitioner were his erstwhile employees and that there is no difficulty for them to identify the petitioner by his name. I am unable to agree with this contention. If the question of identification of an accused arises in any case, the proper method for counsel is merely to ask the witness "Do you see the person in Court" and leave the witness to identify the accused. If the prosecution were to ask the witness to identify the person of the accused by mentioning the name, such a testimony does not carry much weight and it is an unsatisfactory way of getting the identification of an accused in a criminal case. Therefore, there is no merit in the first contention.

10. The contentions of Mr. Ramachandra Rao are that Sections 205, 353 and 540-A of the Criminal Procedure Code must be liberally construed as they are intended to safeguard the interest of the accused and that once an exemption is granted either under Section 205 or under Section 540-A Cr. P. C. it must subsist throughout the duration of the enquiry or trial. He nextly urged that the evidence recorded before the committal Magistrate in the mode prescribed under Section 353 Cr. P. C. can be treated as evidence under Section 288 Cr. P. C. In support of his contentions Mr. Ramachandra Rao relied upon a number of decisions of various High Courts in India. Mainly, reliance was placed on a Full Bench decision of the Calcutta High Court in Sm. Prova Debi v. Mrs. Fernandes, AIR 1962 Cal 203. Per Majority it is held in the above decision that

"where a Magistrate has permitted an accused to be represented by a pleader under Section 205 (i) or S. 540-A (1) he is not bound to compel the appearance of the accused for examination under Section 342 of the Code of Criminal Procedure; he may exercise his discretion in the matter, and examine the pleader of the accused on his behalf"

11. It is clear from the above that the principle of law laid down by the Full Bench of the Calcutta High Court refers to the examination of the pleader on behalf of the accused under Sec. 342, Cr. P. C. when the Magistrate has permitted the accused to be represented by his pleader. This decision does not lay down the law that all witnesses evidence recorded by a committal Magistrate in the absence of the accused in the course of the enquiry can be treated as independent evidence of the guilt or innocence of the accused under Sec. 288 Cr. P. C. The other decision relied upon by Mr. Ramachandra Rao is the Full Bench decision of the Allahabad High Court in Sultan Singh Jain v. The State, AIR 1951 All 864. This decision does not help the Court to decide the question whether the evidence recorded in the absence of the accused can be put in as substantive evidence at the time of trial. The Full Bench of the Allahabad High Court was called upon to decide in the above decision whether the presence of an accused at a place where the trial was held would be detrimental to work, would make the accused incapable of remaining before the Court. Their Lordships have answered this question in the negative. The next question that was decided by Their Lordships was the maintainability of an application to the High Court under S. 561-A, Cr. P. C. when an application under S. 540-A, Cr. P. C. for exemption had been refused. Their Lordships have held that such an application under Section 561-A Cr. P. C. is misconceived. Mr. Ramachandra Rao relied upon several decisions, the latest of them is the decision in Deolakhan v. State of Bihar, AIR 1963 Pat 371 which lays down the law as follows:

"The word "the accused" appearing in Sections 242 and 342 includes his pleader representing him at his own request and on his behalf and a pleader representing an accused either under an order passed under Section 205 or under an order passed under Section 540-A can be examined under Section 242 or 342 instead of the accused.

Where after the accused, on his asking, has been exempted from personal attendance in Court and allowed to be represented by a lawyer up to the stage of his examination under Section 342 or for the matter of that, under Section 242 and the pleader is examined under either of the above sections in place of the accused the non-examination of the accused himself in person does not constitute an illegality so as to vitiate the trial or even an irregularity curable under Section 537."

It is clear from the above decision that when an accused is exempted from personal attendance and was allowed to be represented by a pleader, that examination of the pleader under Section 242 or 342 Cr. P. C. in the place of the accused is neither an illegality nor an irregularity. What the learned Advocate for the petitioner contends is that the word "accused" appearing in Sections 242 and 342 Cr. P. C. includes the pleader representing him. Therefore, he urges that the same principle of law should be extended to the word "accused" found in Section 288 Cr. P. C. Mr. Ramachandra Rao also relied upon the provisions of Section 353 Cr. P. C. which prescribes the mode of taking and recording evidence in inquiries and trials and urged that the evidence can be recorded either in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader. Therefore, he urges that the evidence recorded in the absence of the accused can be used as substantive evidence under Section 288, Cr. P. C. in a trial. Section 353 Cr. P. C. reads as under:

"Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in presence of his pleader". If the intention of the Legislature was to admit as substantive evidence under Section 288 Cr. P. C. the evidence of a witness duly recorded in the presence of the pleader when the personal attendance of the accused has been dispensed with, then the Legislature would have added the same words which are found in Sec. 353 Cr. P. C. viz., "taken in the presence of the accused or when his personal attendance is dispensed with, in presence of his pleader" in Section 288, Cr. P. C. The learned State Public Prosecutor contended that Section 288, Cr. P. C. is an exception to Section 353, Cr. P. C. He urged that there will be no effective examination in the absence of the accused when he is represented by a pleader. He relied upon Section 80 of the Evidence Act, which deals with the presumptions attached to the Judicial documents, viz., deposition of witnesses in a judicial proceeding or before any officer authorised by law to take such evidence or statements or confessions by any accused person taken in accordance with law. Therefore, he urged that the evidence tendered under Section 288, Cr. P. C. would be used as substantive evidence and therefore the provisions of that section must be strictly complied with. There is force in these contentions. He relied upon the decision in Alimuddin v. Queen Empress, (1895) ILR 23 Cal 361 wherein it is held as follows:-

"Although previous statements made by witnesses may be used, under Section 145 of the Evidence Act, for the purpose of contradicting statements made by them subsequently at the trial of an accused person, they cannot, if they have been made in the absence of the accused, be treated as independent evidence of his guilt or innocence; Section 288 of the Criminal Procedure Code will not avail anything for this purpose."

Their Lordships of the Calcutta High Court, in the course of the judgment, have observed as follows:

"The success of the prosecution in this case rests mainly upon the statements of Ayesha and Latifa Banu made in the case of Habibull before the Committing Officer, and upon the evidence of Yasin and Bunde Ali.

As regards the statements of Ayesha and Latifa Banu it seems to us that, though no doubt they could be used for the purpose of contradicting the statements made by them in the present trial, they could not be treated as independent evidence of the guilt or innocence of the accused, for the simple reason that they were not made in the presence of the accused. Mr. Donogh, however, on behalf of the prosecution has contended, referring to S. 288 of Code of Criminal Procedure, that inasmuch as the statements of these two women made upon the former occasion were put to them and referred to in the course of the evidence that they gave before the Committing Officer in the present case, therefore no statements themselves could properly go in and be used as evidence establishing guilt or innocence of the accused, We are unable to accept this contention as correct Section 288, provides as follows:

"The evidence of a witness, duly taken in the presence of the accused before the Committing Magistrate, may, in the discretion of the Presiding Judge if such witness is produced and examined be treated as evidence in the case"

Now in the first place, the statements in question were not made in the presence of the accused; and in the second place, it seems to us that the arguments assume that the said statements were evidence against the accused; for if they were not, they could not be made evidence against him, merely because they were put to the two women in the course of their evidence in this case".

12. I am in respectful agreement with the principle of law laid down in the above decision. The Evidence recorded in the absence of the accused cannot be treated as substantive evidence of his guilt or innocence under Section 288 Cr. P. C. in cases where the accused has been exempted from personal appearance and permitted to be represented by his pleader under the provisions of Section 205 or 540-A, Cr. P. C. Therefore, the contentions of Mr. Ramachandra Rao that the evidence recorded before a committal Magistrate in the mode prescribed under Section 353 Cr. P. C. can be treated as evidence under Section 288 Cr. P. C. is untenable and therefore it fails. In this view of the matter, while refusing extension of exemption, the reason assigned by the learned Magistrate, that the evidence recorded under Chapter XVIII can be read as evidence by the trial court under Section 288 Cr. P. C. if the evidence is recorded in the presence of the accused, is in accordance with law.

13. On the question of status of the accused, the learned State Public Prosecutor invited my attention to a decision in Sushila Devi v. Sharada Devi, 1961 (1) Crl. L. J. 819 (MP) wherein it is held as follows:

"Courts should be generous in exempting accused persons from personal appearance. Personal appearance is the Rule in criminal cases of a serious nature, involving moral turpitude and punishable with imprisonment for some length of time. On the other hand, where the offence is punishable with fine only, and involves no moral turpitude, the exemption should be the rule unless, of course, it is to the interest of the accused himself, in view of the question of identification, to appear in person. Whenever personal appearance is insisted upon, there is some harassment to the accused; the courts have to see that this harassment is not out of proportion to the seriousness of the allegations, the severity of the possible punishment on conviction; and the very nature of the allegations themselves as they stand out in the prima facie case. While no hard and fast rule can be laid down, courts are expected to exercise their discretion in this regard after seeing the full picture. Certain general criteria can also be indicated. For example other conditions being the same a pardanashin woman should, if possible, be spared the inconvenience and embarrassment of compulsory personal appearance. The next test will be a question of status; highly placed public functionaries, or very busy captains of industry and the like should not, unless the prima facie case is serious, be compelled to attend ......"

I am in respectful agreement with the ratio of this decision. In the instant case, there is no doubt that the offences alleged against the petitioner are of a serious nature involving moral turpitude and punishable with imprisonment for some length of time if the allegations are established by the prosecution. Therefore, the question of status of the accused while granting exemption cannot be considered. The learned Magistrate has rightly observed that in a case of this nature while recording evidence the presence of the accused is necessary. Therefore, the contention of Mr. Ramachandra Rao that having regard to the position of the petitioner who is head of a Mutt having responsibility of performing poojas according to shastras throughout the day has no merit in it.

14. As regards the contention that the exemption from appearance before the Court had been granted to the petitioner for the duration of the inquiry has no merit in it in view of the order passed by the learned Magistrate on 17-10-1966 exempting the petitioner from his appearance before the Court till the stage of recording evidence. This order does not suggest that the exemption was granted for the entire duration of the inquiry. The contention of Mr. Ramachandra Rao that the learned Magistrate has not considered the grounds mentioned in the application while rejecting the application for extension of exemption till the disposal of the case does not survive in view of the legal position that the evidence recorded in the absence of the accused cannot be treated as substantive evidence of his guilt or innocence under Section 288 Cr. P. C. in cases where the accused has been exempted from personal appearance and permitted to be represented by the pleader under the provisions of Sections 205 and 540-A Cr. P. C.

15. For the reasons stated above, the learned Magistrate has properly exercised his discretion in refusing to grant the petitioner extension of exemption from appearance before the Court. The order passed by the learned Magistrate does not call for interference.

The Revision Petition fails and is dismissed.

Petition dismissed.