The Jodhpur bench of the Rajasthan High Court recently ruled that the presence of accused persons, particularly in check bouncing cases – which are semi-criminal/civil in nature – should not be ordinarily required, unless the trial court need not examine the accused or his statement should be recorded.

A single judge bench composed of Judge Arun Monga was hearing the quashing plea of ​​a man booked for dishonor of check under section 138 of the Negotiable Instruments Act. He had challenged the trial court’s order that revoked his bail and issued a warrant for his arrest for failure to appear on a scheduled date. The trial court had also initiated proceedings under Section 446 Cr.PC (procedure in case of forfeiture of bail) against the man’s surety.

The petitioner’s lawyer said that due to his wife’s ill health, the accused requested to file an application for exemption from personal appearance. But the trial court was harsh, holding that the reasons given by the accused were not genuine, since requests for exemption had also been filed by him in the past and were rejected.

The High Court, however, said: “I I am of the view that the presence of an accused, particularly in a case of the nature at hand, where the proceedings are of a semi-criminal or civil nature, should not ordinarily be insisted upon, if an application is made for a hearing particular, unless the trial court must either examine the accused or his statement must be recorded in some other manner to proceed with the case“.

“As far as the directions issued by the learned trial court to proceed against the sureties under Section 446 Cr.PC are concerned, it is also a serious procedural error committed by the learned trial magistrate and which cannot be sustained.“, added the court.

The court referred to the decision of the Punjab and Haryana High Court Mohammad Haras vs Punjab State (2023) wherein it was held that cancellation of bail was a serious matter having a significant impact on a person’s life and which could not be taken lightly in such a mechanical manner and therefore, before rendering such an order, the court must give the accused an opportunity to explain why the bond should not be canceled.

Reference was also made to the decision of the High Court in the case Arun Solanki versus the Statealso delivered by Justice Monga, in which even though the magistrate had accepted the application for exemption from appearance but had imposed a fee of Rs. 5,000 on the accused. Terming the trial court’s decision as misapplication of judicial discretion and arbitrary, the Arun Solanki bench said:

“The presence of an accused is not intended to satisfy the ego of the court but to ensure that he can safeguard his interests during the trial, and his absence must not prejudice his case or jeopardize his right to a fair trial. Rigidly imposing such irrational conditions, even when the presence of the accused is not required, is completely unjustified. We should therefore not insist on the personal presence of a judged/accused person when it is not necessary for the conduct of the trial.”

In view of the above, the High Court in the present case set aside the order of the trial court.

“The original sureties of the accused petitioner as well as the sureties of his sureties are returned subject to payment of Rs.7,500/-, as costs, to be paid to the complainant. Continuation of the trial, in accordance with the law,“, the High Court added.

Title: Amit Kumar Dave v. State of Rajasthan and Anr.

Quote: 2024 Live Act (Raj) 327

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