Summons to accused and appearance through counsel

Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254 : 2001 SCC OnLine SC 1004 at page 408

17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.

18. A question could legitimately be asked — what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance.

Affirmed in TGN Kumar v. State of Kerala, (2011) 2 SCC 772 at p. 778
Followed in Puneet Dalmia v. CBI, (2020) 12 SCC 695

• Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. — (2001) 7 SCC 401
  Principle: In appropriate summons cases the magistrate may allow even the first appearance to be made through counsel and may record the accused's plea when counsel so pleads on his behalf. - 
• T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram — (1999) 3 SCC 614
  Principle: Non-advocates may be permitted to act as "pleader" only with prior permission of the court; court must be satisfied that such person can assist the court. - 
• Bibhuti Bhusan Das Gupta v. State of W.B. — 1969 SCR 104
  Principle: Examination under statutory sections requiring accused’s statement (e.g., S. 342/313 analogues) must ordinarily be of the accused personally; pleader’s examination in his stead is not a substitute except in narrow cases (e.g., juridical persons). - 
• Bulbul Guha v. Durga Prasad Ghosh — 1993 SCC OnLine Cal 20
  Principle: An appearance through a pleader should normally be allowed in summons cases unless personal attendance is necessary in the interests of justice. - 
  Paras: 6, 7, 8, 9, 10
• Vivek Bajoria v. State — 2008 SCC OnLine Cal 186
  Principle: It is settled that magistrates can allow the accused’s first appearance through counsel and can record the plea when counsel pleads on his behalf; magistrates should record reasons if they require personal attendance despite a dispensation. - 
  Paras: 3
• Harbeenarora v. Jatinder Kaur — 2012 SCC OnLine Del 3687
  Principle: While granting exemption courts should ensure accused’s identity is not in dispute and may impose conditions (counsel present, no later challenge); discretion to call accused at any stage is reserved. - 
  Paras: 11
• Mithlesh Kumar v. Shyam Lall Paik — 2003 SCC OnLine Cal 609
  Principle: Magistrate’s dispensation of personal attendance is lawful and evidence may be recorded in the accused’s absence provided advocate is present; appropriate for public servants posted away. - 
  Paras: 13
• Hafeez Ullah Khan v. Spl. C.J.M. Allahabad — 1998 (80 FLR 610) (All)
  Principle: Discretion to direct appearance through counsel should be exercised when summons are issued; avoid dispensing personal attendance where offence is serious. - 

sub judice cases and permission of court

1. in Union of India v. Raj Grow Impex LLP, (2021) 18 SCC 601, it has been held that-

“94. […] In other words, though we are at one with the High Court that, ordinarily, when the matter is sub judice in the higher forum and that too before the constitutional court, the executive authorities should not attempt to bring about a new state of affairs without taking permission from the court and/or bringing the relevant facts to the notice of the court. However, even in this regard, before pronouncing on the impropriety on the part of an executive authority who had done anything without prior information to the court or without taking court's permission, all the relevant surroundings factors are also required to be examined so as to find as to whether such an action was calculated at interference with the administration of justice or was a bona fide exercise of power in the given circumstances.”

Elaborate reasoning with a footnote

Interim Bail

Period spent in pursuing review can be excluded in condonation of delay

2011 SCC OnLine MP 2412 : ILR 2011 MP 2326      J 2

Constitution, Article 226 — Writ petition — Justifiable excuse for delay in filing — Filing of a review and its pendency would be a justifiable excuse for delay, provided such review is permissible under the relevant service rules — A review application filed without any legal provision can not provide an excuse for delay or laches.

 

Suvarnalata v. Mohan Anandrao Deshmukh, (2010) 4 SCC 509 : (2010) 2 SCC (Civ) 203 : 2010 SCC OnLine SC 437 at page 511

12. As far as the prayer for condonation of delay in filing the special leave petition is concerned, we are of the view that sufficient grounds have been made out to condone such delay, particularly because a large portion of the delay was on account of the pendency of the review petition which had been filed against the judgment and order of the High Court dismissing her appeal. The delay in filing the special leave petition is, accordingly, condoned.

 

Ashok Kumar v. State of Bihar, (2008) 8 SCC 445 : 2008 SCC OnLine SC 770 at page 446

4. In our view, the High Court had fallen into error in not holding that the appellant had sufficiently explained why the writ petition could not be moved or why it was moved after 4 years of the decision of the State Government. Since the appellant had filed a representation/review of the decision of the State Government, it was expected by him that an order should be passed on the said representation/review. Therefore, in our view, the delay in moving the writ application against the decision of the State Government was sufficiently explained by the appellant and, therefore, the writ petition ought not to have been dismissed on the ground of delay and laches. Accordingly, we set aside the impugned orders of the Division Bench as well as of the learned Single Judge.

 

.B. Ramlingam v. R.B. Bhvaneswari, (2009) 2 SCC 689 : (2009) 1 SCC (Cri) 840 : (2009) 1 SCC (L&S) 535 : 2009 SCC OnLine SC 133 at page 691

7. For the aforestated reasons, we hold that in each and every case the court has to examine whether delay in filing the special leave petition stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. In exercise of discretion under Article 136 to decide whether delay should be condoned or not, this Court is not bound by considerations applicable to an appellate court but nonetheless general principles which would weigh with the appellate court in determining sufficient cause can be the guiding factor/guideline. Therefore, it cannot be stated as a proposition per se that the prosecution of review proceedings would not be a sufficient cause at all for the purposes of Section 5 of the Limitation Act, 1963.

 

 

2000 SCC OnLine SC 55

3. This appeal is directed against the judgment of the High Court in the writ petition dated 23-9-1997 and also the order passed in the review application dated 1-2-2000, dismissing the writ petition. There was delay in filing the SLPs because of the pendency of the review application. We therefore, condone the delay in filing of both the SLPs.

Alternative remedy - long pendency

Case Title	Citation	Legal Provision	Key Ratio / Holding	Relevant Paragraphs
Hemraj Ratnakar Salian v. HDFC Bank Ltd.	[(2021) 20 SCC 395]	Constitution of India, Article 136	Maintainability of SLP: Even though an alternative remedy was available to the appellant, the Supreme Court decided the matter itself considering the long pendency of the appeal (since 2016).	(Para 9)
Durga Enterprises (P) Ltd. v. Principal Secy., Govt. of U.P.	[(2004) 13 SCC 665]	Constitution of India, Article 226	When Alternative Remedy Rule Inapplicable: The High Court summarily dismissed a writ petition on the ground of alternative remedy after it had been pending for a long period of thirteen years. Held: Since the HC had entertained the petition and pleadings were complete, it ought to have decided the case on merits rather than relegating parties to a civil suit. Matter remitted to HC for fresh decision.	(Paras 2, 3, 4 and 6)

Alternative remedy not to be used when matter pending for long time

Ground not raised in Appeal but raised in rejoinder - not correct way. ground not allowed to be raised

Since the High Court has recorded a finding of fact as to the market value of the lands, based on the evidence, we do not find any good ground or valid reason to take a different view. As regards the contention based on Section 25 of the Act, we may say that this ground having not been urged before the High Court, not raised in the special leave petition, although it is raised subsequently in the rejoinder-affidavit, cannot be permitted to be urged before us for the first time because it requires some verification of facts and records. We may also state here that the respondent claimants are entitled to all the statutory benefits as are available to them on the amount of compensation, as determined by the High Court.

Mandal Revenue Officer v. C.R. Bhagwanth Rao, (2005) 10 SCC 478

retributive theory is not valid

Sr. No.	Case Law & Citation	Relevant Extracts (The Principle)
1.	Sunil Batra (I) v. Delhi Administration (1978) 4 SCC 494 (Constitution Bench - 5 Judges)	Para 211: "It is now well settled that the retributive theory has had its day and is no longer valid. Deterrence and reformation are the primary objectives of punishment... The prisoner does not cease to be a human being and he acts like a human being." Para 53: "Brutal man-handling... is not a valid penal programme... Retribution and deterrence are not the sole ends of punishment; reformation and rehabilitation are the primary objectives. The prison system must be therapeutic, not traumatic." Para 244: "Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and retention in the mainstream of social life, becomes counter-productive in the long run."
2.	Maru Ram v. Union of India (1981) 1 SCC 107 (Constitution Bench - 5 Judges)	Para 43: "It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation." Para 43: "The infliction of harsh and savage punishment is thus a relic of past and regressive times... We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind." Para 45: "It makes us blush to jettison Gandhiji and genuflect before Hammurabi, abandon reformatory humanity and become addicted to the 'eye for an eye' barbarity." Para 72(12): "In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles... so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos."

 

Factors for grant of bail and challenge to grant of bail