Case Title:
GH Abdul Kadri Vs. Mohammad Iqbal
Date of Order:
May 24, 2022
Bench:
Justice Sreenivas Harish Kumar
Parties:
Petitioner - GH Abdul Kadri
Respondents - Mohammad Iqbal
Subject
A petition was filed in the Karnataka High Court challenging the judgment passed ex-parte in a criminal trial. To this, the Karnataka High Court ruled that, in criminal cases, no ex-parte decisions can be taken by the courts as happens in civil cases.
Important provisions: Article 21 of the Indian Constitution, Section 313, 273, 299, 251, 262, 263,264,265 of The Code of Criminal Procedure, 1973, and Sections 138 and 143 of Negotiable Instrument Act, 1881.
Overview
The petitioner Abdul Kadri filed a revision petition before the Hon’ble Karnataka High Court challenging the orders passed by the Magistrate Court and Principal District and Sessions Judge, convicting him ex-parte of the offense under Section 138 of the Negotiable Instrument Act. The Magistrate Court ruled since the accused did not appear before the Court despite various summons served to him, therefore referring to the judgment of the Hon’ble Supreme Court in the case of Bank Association and Ors. v. Union of India (2014, 5 SCC 590), the court delivered the ex-parte judgment. Further, in an appeal, the Sessions Judge held that in various judgments it has been decided that since the offense under Section 138 of the NI Act is document-based, therefore, waiting for the accused to appear before the Court is not mandatory, and hence, he had been rightly convicted by the Magistrate Court.
Issues Raised
- Whether a criminal trial can take place ex-parte?
Arguments advanced by the Petitioner
The petitioner contended that the criminal must be held in the presence of an accused unless he has asked for his exemption from the appearance before the Court. He further contended that recording the plea of an accused under Section 251 of CrPC becomes mandatory as per the procedure provided by Sections 262 to 265 of CrPC. This is provided under Section 143 of the said Act and because the required procedure was not duly followed by the Magistrate Court, the judgment stands violative of Article 21 of the Indian Constitution which provides for the due process of law.
He further contended that the Hon’ble Supreme Court judgment in the Indian Bank Association case (supra) did not mention that the trial can be held in the absence of an accused. The examination of the accused is mandatory under Section 313 of CrPC and can be dispensed with only when it is a summons case, in which his personal appearance has also been dispensed with. However, he stated that the concerned case is not the same.
Arguments advanced by the Respondent
The respondent however submitted that since proper summons was served to the petitioner despite which he did not appear before the Court, therefore, the ex-parte decision was passed.
Judgment Analysis
The Hon’ble Karnataka High Court ruled that the trial court misinterpreted the judgment passed in the case of the Indian Bank Association by inferring that there is no need to secure the presence of the accused in case he does not comply with the summons served to him. The Hon’ble High Court further stated that all possible ways to secure the presence of the accused must be adopted by the Court, like, the issuance of the warrant, and proclamation. Referring to the case of Basavaraj R Patil and Ors. v. State of Karnataka [2000 8 SCC 740], the Hon’ble Court stated that the judgments provided for the alternative mode for obtaining the statement of the accused without securing his actual presence.
Thus, the Hon’ble Karnataka High Court opined that the judgments of both the Magistrate Court and Sessions Court were erroneous and hence, redirected the case to the Magistrate Court for a fresh trial.
Conclusion
The ex-parte decisions in criminal cases have both negative and positive aspects. On one hand, it is inaccurate because it deprives a person of the opportunity of a fair trial, which must be ensured as per the law by the Courts. On the other hand, if the accused abstains from appearing before the Court even after the summons is served to him, waiting for him only takes away the precious time of the Court and also delays the justice to get delivered. Therefore, a proper balance needs to be maintained while dealing with the cases that guide the courts toward taking ex-parte decisions.
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