The High Court of Karnataka has suggested that the legislature should think of bringing a suitable amendment to the Code of Criminal Procedure (Cr.PC) or to the special law of the Negotiable Instruments Act, 1881, to enable the courts to conduct the proceedings in the absence of the accused.
“Such an amendment, perhaps, may deter unscrupulous elements who would resort to avoiding service of summons or execution of warrant against them,” the High Court has observed.
Justice Sreenivas Harish Kumar made these observations while setting aside two separate judgments passed by a magistrate court and a sessions court, which had convicted an accused person in a cheque dishonour case in his absence.
A magistrate court in Udupi in 2018 had convicted one G.H. Abdul Khadri of Shivamogga district for issuing five cheques even though he had not appeared before the court for the trial despite service of summons. The accused had issued five cheques for ₹50,000 each to the complainant, Mohammed Iqbal of Udupi district.
Citing a judgment of the apex court, the magistrate had said that the presence of the accused was not necessary as evidence against him was based on documents filed by the complainant. A sessions court in Udupi had in 2019 agreed with the findings of the magistrate court.
“…unhesitatingly, it can be stated that 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,” the High Court said in its order.
Pointing out that trial court erred in understanding the apex court’s judgment, the High Court made it clear that there is no provision in the Cr.PC for keeping an accused ex parte similar to one found in the Code of Civil Procedure which provides for placing a defendant ex parte if there is due service of summons or notice on him.
“Speedy trial does not take the meaning of jumping the stages in a criminal trial,” the High Court observed while pointing out that law required to be amended to record evidence in the absence of the accused if for any reason the presence of the accused cannot be secured despite exhausting every mode of service of the court’s summons.
The High Court remanded the case to the magistrate court to conduct trial again and directed the accused and the complaint to attend the trial.