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

The Karnataka High Court has said that a criminal trial cannot be held in the absence of an accused unless personal appearance is dispensed with for valid reasons. There cannot be dispensation of examination of an accused under section 313 Criminal Procedure Code (Cr.P.C) if incriminating evidence appears in the evidence of the witness. 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...

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

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