- In GH Abdul Kadri vs Mohammad Iqbal the Hon’ble Karnataka HC has held that a criminal trial cannot take place in the absence of the accused, unless his personal attendance has been dispensed with for valid reasons.
- The Court further held that the examination of the accused under section 313 CrPC by the Court cannot be dispensed with even if incriminating evidence appears in the evidence of the witnesses. Speedy trial does not mean jumping stages in a criminal trial, the Court said.
- The instant revision petition was filed by the petitioner, GH Abdul Kadri, challenging the order of the Lower Court and the Sessions Judge. The petitioner was accused of offences under section 138 Negotiable Instruments Act. The lower Court had observed that the petitioner did not appear before the Court repeatedly, despite the issuance and service of summons. The Court relied on the judgement of the Apex Court in Indian Bank Association and ors vs Union of India (2014) SCC and accepted the affidavits filed in the cases by the respondent, dispensed with the statements of the accused under section 313 CrPC, and then convicted the petitioner in all the cases.
- In appeal before the Sessions Judge, the Hon’ble Court held that from the evidence brought on record by the complainant, and the documents that were produced by him, a clear case of the petitioner/accused’s culpability was made out. The Court further went on to observe that an offence under section 138 of NI Act is a document based offence, and thus, there was no need for the accused to appear before the Court, and thus upheld the decision of the Trial Court in all the cases.
- Before the Hon’ble HC, the Counsel for the petitioner argued that criminal trials must be held in the presence of the accused, unless his personal attendance has been dispensed with. It was also argued that section 143 of the NI Act provides that the proceedings would occur by way of summary procedure, and that sections 262 to 265 of CrPC would apply in the case. Thus, recording the plea under section 251 of CrPC is compulsory. Since this procedure was not followed, the judgement of the trial Court would violate the concept of procedure established by law under Article 21 of the Constitution.
- It was also argued that if the accused did not respond to the summons, his presence must be ensured by the issuance of a warrant or by proclamation. Examination of the accused under section 313 of CrPC is mandatory, and can be done away with under summons trial only when the personal attendance of the accused has been dispensed with.
- Referring to the decision of the Hon’ble Supreme Court in Indian Bank Association and ors vs Union of India, the HC observed that the Apex Court has clearly held that if the summons has been returned unserved, immediate follow up action must be taken. The reason for the non-service of the summons must be ascertained, or a warrant may be issued. The Hon’ble Apex Court did not indicate in this case that the trial can be held in the absence of the accused, if he did not appear before the Court despite the issuance of the summons.
- The Hon’ble HC also observed that section 273 CrPC clearly states that the evidence must be taken in the presence of the accused, unless his personal attendance has been dispensed with. The only provision in CrPC that provides for the recording of evidence in the absence of the accused is under section 299 CrPC. Thus, the Court observed that it was clear that except under section 299 CrPC, evidence cannot be recorded for any other reason in the absence of the accused.
- Thus, the revision was allowed and the decisions of the lower Court and the Sessions Court were set aside.
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