S.Durlab Singh vs Omkar Nath, Dr.

This is a revision petition directed against the order of the learned Sessions Judge Srinagar dated 11165 whereby he rejected a revision petition of

the petitioner against the order of the Munsiff SubRegistrar Magistrate first class Srinagar dated 161064.

The facts that have given rise to this petition are as under.

A criminal complaint under S. 500/501 RPC was instituted by Dr. Omkar Nath respondent against the petitioner who is alleged to be the editor

and S. Kulbir Singh the printer and publisher and Mr J. S. Chopra, Staff correspondent of the Indian Observer, The accused were summoned by

means of the court's order of the same day. Out of the three accused, till today accused Nos. 2 and 3 have not appeared in the court. The first

accused, the petitioner before me, appeared before the trial court and later on put in an application on 19864 for exemption from personal

attendance in the court. The grounds mentioned in the application are that he is the editor of a very important publication known as the Indian

Observer which has a wide circulation in and outside India. If he is to appear personally in the criminal case here, he will suffer an irreparable loss.

The second ground mentioned in the application is that he has to come from a distance of 500 miles which will be injurious to his health and

business. Incidentally it is mentioned that the health of the accused No. 1 also is not perfect ; he is under treatment and should be exempted. In the

trial court the petitioner produced a certificate of one Dr. Y. C. Arora dated 101164 which says that he was suffering from diabetes and he had

developed coronary Ischemia. He was advised complete rest and avoid cold and hill station during the winter.

After hearing arguments the trial Magistrate rejected this application. A revision against this order was presented before the learned Sessions

Judge. There also the same doctor by his certificate dated 2?1264 had said that the petitioner was suffering from diabetes and coronary Ischemia

and was advised rest for six weeks and avoid cold. The learned Sessions Judge after hearing the arguments of the learned counsel for the parties

rejected the revision petition. It is against these orders that the present revision petition has been moved in this Court.

A learned counsel from Delhi appeared before me more than once in this case. Today when the case came up for arguments, I found an

application from a gentleman Shii Prannath Tufchi stating that the petitioner had sent him a medical certificate for presentation in this Court. This

medical certificate is from Dr. Sens' Nursing Home and is dated 3rd July 65 and appears to be signed by some C Diesh. Appended to C. Diesh

are the letters FACS. FACS perhaps represents the qualifications of this gentleman, but I have not heard of any such qualifications. I inquired of

the respondent Dr. Onkar Nath in court what these letters indicated. He too was unable to make out anything about the qualifications of this

gentleman. This certificate is to the effect that the petitioner had a fracture of his left leg. His plaster had been taken off and he was advised to

restrict his movements and further that he could not be fit for journey for eight weeks from the date of the certificate, i. e., 3rd July 65. These are

the entire facts of this case.

The learned counsels for the petitioners have argued the application for exemption at length and they have invited my attention to the provisions of

S. 540A Criminal P C. and to some authorities which I shall presently discuss. S. 540A has undergone an amendment. The previous section

mentioned that the accused whose absence is sought to be excused should be incapable of remaining before the court. These words have now

been substituted by the words that the personal attendance of an accused before the court is not necessary in the interests of justice. In that case

the Magistrate or the court has a discretion to excuse his personal appearance. According to the learned counsel for the petitioner the amended

section was wider than it was before and should be liberally construed. The authorities cited by the learned counsel for the petitioner are AIR 1932

All. 504, AIR 1962 Cal. 203 FB and AIR 1963 Patna 371. I am afraid none of these authorities helps the case of the petitioner. The first authority

is definitely against him and the latter two authorities of Patna and Calcutta only lay down that when an accused has be exempted from personal

appearance whether his counsel can be examined under S 342 Criminal P. C. The point involved in this case is not the subject matter of discussion

in these authorities. So these authorities are of no help to the petitioner.

Now taking the grounds as mentioned in the application for exemption from personal appearance, the first ground is that the petitioner is a very

important person, the editor of the Indian Observer which has a wide circulation both in and out of India and therefore his absence from Delhi to

face his trial in Srinagar would cause him irreparable loss. This cannot at all be said to be a ground covered by S. 540A of the Criminal P. C. we

take the words of the present amended section they empower the court to exempt an accused from personal attendance if his personal appearance

is not necessary in the interests of justice. The financial position of an accused or the loss that he would incur by being asked to stand before a

court of law cannot by any stretch of imagination or interpretation be held to be tantamount to a finding that the presence of the accused is /not

necessary in the interests of justice. Such an interpretation is entirely incompatible with the word of the section. Therefore the social status, the high

position or the pecuniary loss that an ( accused would incur by being asked to be present before a court of law to meet a criminal charge is not a

ground contemplated by S. 540A Cr. P. C.

The third ground that of distance from Delhi this place also has no merit. The accused's coming from a distance to attend a particular court can not

be taken as a guiding principle which would determine whether the personal attendance t the accused before the court is necessary or It is the

nature of the charge and other circumstances which should justify the exemption : otherwise of an accused from personal attendance m a court of

law. In my opinion this ground also cannot be considered sufficient to attract the provisions of this section.

Although I have disussed the two grounds mentioned above, they were not commented upon or pressed before me by the learned counsels for the

petitioner, but as I was to dispose of the entire petition of the petitioner for exemption from personal appearance, I discussed these grounds also.

The only ground that was pressed before me was that of illness. About the petitioner's illness I have referred to the three certificates produced by

him. The first certificate is dated 101164. In that the accused was advised to avoid a hill station during the winter. This was the certificate produced

before the trial court. The second certificate produced before the sessions court advised the petitioner rest for six weeks from 221264. The third

certificate produced before me has advised the petitioner rest for eight weeks from 3rd July 65. Although so much time has elapsed since the

production of the first certificate by the petitioner in the trial court, he has never appeared either before me or before the trial court. If he was

advised to avoid winter visits to Kashmir he could easily appear in the court during the summer months. That has not been done, and even the

latest certificate which does not connote the official position or the qualifications of the gentleman who purports to have signed it, only advises him

eight weeks rest .from 3rd July 65. Even those 8 week have elapsed and the accused has not chosen to appear.

The learned counsel for the respondent argued at length about the conduct of all the accused that they have been avoiding service on one pretext

or the other and have never so far submitted themselves to the jurisdiction of the Kashmir courts. There may be some truth in these allegations, but

as I pointed out to the learned counsel for the respondent, the conduct of the other accused would not influence me to decide this petition one way

or the other. So far as the petitioner's case is concerned, I feel confident from the record before roe that he is avoiding to appear before the courts.

Even if the most favourable view is taken and the certificates mentioned above are taken as correct (although I have much doubt whether the mere

production of a paper like these certificates is sufficient without further proof to entitle the accused to be exempted from appearance) there is no

ground factually made out for the exemption of the petitioner from personal attendance in the trial court. The time limit for which the petitioner was

prohibited to come to Srinagar has already expired and the accused is unnecessarily prolonging the proceedings at his own risk.

The learned counsel appearing for the respondent have assured me that they will expedite production of the evidence within a hearing or two if the

accused choose to appear. That is a matter which will be considered by the trial court. Neither the complainant nor the accused should be

unnecessarily harassed. At the same time neither party should be allowed to play with the process of the court and I would enjoin upon the trial

court to see that proper action is taken against the defaulting party, whether it be the complainant or the accused. Legally and factually there is no

ground made out for exemption of the petitioner from personal appearance in the court at this stage. But this will not preclude the petitioner from

satisfying the trial court, after he appears before the court, that there are good grounds for exempting him from personal attendance.

This application is therefore rejected and the trial court is directed to take immediate and effective steps for the appearance of the accused and the

speedy disposal of the whole case.