Anil Metre vs Registrar Of Companies And Ors.
2003 Latest Caselaw 863 Del

JUDGMENT

B.C. Patel, C.J.

1. The original accused who was facing prosecution at the instance of the Registrar of Companies in the court of the Additional Chief Metropolitan Magistrate has approached this court with certain prayers, including transfer of his matter to some other court of competent jurisdiction.

2. Looking to the averments in the petition, we took cognizance of the matter and called for the report of the Judicial Magistrate before whom the matter was placed and the record is before us along with the report made by the Additional Chief Metropolitan Magistrate before whom the matter was placed.

3. The matter is very simple. The accused was summoned by the Magistrate to appear. However, the company represented by the present applicant and the present applicant in his personal capacity being served, were expected to appear before the Magistrate. When the court process is issued, it is required to be respected. It is necessary to read the language of the summons forwarded which reads as under:

" You are hereby required to appear in person or by pleader (as the case may be) before the (Magistrate) of ......."

4. Thus accused was required to remain present before the Magistrate in person or through an Advocate. There was no mandate to personally remain present. It is also required to be noted that it is not necessary that in all the cases and at all times an accused should remain present. He may be represented through a lawyer. The Criminal Procedure Code (Cr.P.C.) has provided machinery and various provisions to secure the presence of an accused. If at the initial stage, while taking the cognizance, the Magistrate thought it fit that the accused may appear before the court either in person or by an Advocate, then the Advocate's presence before the court is sufficient compliance with the summons issued by the court.

5. It is also required to be noted at this juncture that the complaint is filed by a public servant, namely, the Deputy Registrar of Companies, NCT of Delhi and Haryana. The averments made in the complaint in para 5 are required to be reproduced:

"That the accused did not produce the abovementioned records before the office of the complainant despite being issued the notice dated 24.6.2002 & 22.7.2002 and thus have contravened Section 234(1) of the Act which is punishable U/s 234(4)(a) of the Companies Act, 1956."

6. Section 234(4)(a) of the Companies Act, 1956 reads as under:

"The company and each such person shall be punishable with fine which may extend to five hundred rupees and in the case of a continuing offence, with an additional fine which may extend to fifty rupees for every day after the first during which the offence continues."

7. Therefore, if the offence is committed for the first time by the accused, the amount to be paid by the accused under the orders of the court would be Rs.500/- and if there is a continuing offence, then fine will be enhanced according to number of days. It was not the case before the Magistrate in the complaint that the offence is a continuing one. Obviously this being bailable offence, summons was issued while taking the cognizance. Section 190 of the Cr.P.C. refers to Cognizance of offences by Magistrates while Section 204 refers to Issue of Process. These Sections read as under:

" Section 190 : Cognizance of offences by Magistrates: (1) Subject to the provision of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his knowledge, that such offence has been committed.

Section 204: Issue of process - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks it, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."

8. Thus as this was summons-case, the summons was required to be issued for attendance of the accused and in view of the fact that the offence was not grave, the court issued summons to the accused to appear in person or through a pleader.

9. Chapter 37 of the Cr.P.C. under the caption `Miscellaneous' provides Forms under Section 476. The forms set forth in the Second Schedule, with such variations, as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. In Second Schedule, Form No.1 is prescribed. Under Section 61 under the caption `Processes to Compel Appearance', procedure is prescribed for issuance of summons and the manner in which it is to be served. Where summons is issued by a court under this Code, then the same is required to be issued in writing in duplicate. The same is required to be signed by the Presiding Officer of such court or by such other officer, as the High Court may, from time to time, by rule direct, and shall bear the seal of the court. Now it is under this provision form is prescribed in Second Schedule and in consonance with that form summons was issued to the accused to appear in person or by a pleader.

10. Therefore, in the opinion of the court when summons is issued in the manner stated above, it is not necessary that the accused should remain personally present in the court. In compliance with the requirement of the issuance of summons, if an Advocate has appeared before the Magistrate on behalf of the accused, then it is in compliance with order issued by the court.

11. Considering the nature of the offence, seriousness, antecedents of the accused, the court, if satisfied, may, instead of issuing a summons, issue bailable warrant or non-bailable warrant and before issuing of that process, there must be application of judicial mind on the basis of material placed on record. When a simplicitor complaint is filed for an offence which is punishable with fine only, the summons is required to be issued for returnable date and even in the absence of the accused the Advocate may plead guilty and may see that the matter comes to an end. In a case like this, when there are more than one accused and others are not served, is it necessary for the accused to remain present on day when the matter is adjourned? Is it not open for him to plead guilty and to pay fine as may be ordered by the court? The court proceedings are for doing justice in the manner prescribed in the Procedure and the law and not dehors that.

12. In the instant case, we find that notice was issued by the court for 10th April, 2003. Summons issued clearly stipulated that the petitioner could appear personally or through Advocate. There were three accused/respondents. M/s Specturm Magazine Ltd. is respondent No.1 of which petitioner is the Director and was imp leaded as respondent No.2. Two other Directors were imp leaded as respondents 3 and 4. On the ground that the petitioner was suffering from high fever, he moved an application for exemption from personal appearance. Order dated 10th April, 2003 shows that the Magistrate issued bailable warrants in sum of Rs.10,000/- against accused Nos. 3 and 4 and warrant of attachment in the sum of Rs.2 lacs against the accused company. No order was made in respect of the petitioner despite the absence of an Advocate. However, under the mistaken belief that bailable warrant was issued even against the petitioner, the petitioner moved an application for cancellation of warrant which was taken up on 24th April, 2003. It appears that even the Magistrate was under the impression that bailable warrant was issued against the petitioner. It is because of this reason that when application came up for hearing on 24th April, 2003, the Magistrate accepted the application and withdrew the warrant of attachment subject to cost of Rs.500/-. It was further ordered that case be put up on 23rd July, 2003 for appearance and furnishing of bail bonds.

13. On 23rd July, 2003, the petitioner was present before the court but bail bonds were not furnished. The case was adjourned to 7th August, 2003 for furnishing of bail bonds and appearance.

14. It is the case of the petitioner that on 7th August, 2003 he appeared before the Magistrate with one Ms. Archana Shukla, Senior Correspondent, Bennett Coleman & Co. who submitted herself as surety for the accused and also submitted a certificate of FDR for a sum of Rs.15,406/- before the Magistrate. However, the Magistrate refused to accept the said surety and insisted that a surety should be a Government servant and kept the matter for 3PM. At 3PM, the petitioner produced one Sh. S. Chakraverty, Under Secretary, Government of India, working with Cabinet Secretariat who produced his identity card along with salary slip but the Magistrate refused to accept this surety as well and asked Mr. Chakraverty to bring his proof of residence and adjourned the matter for 8th August, 2003. On 8th August, 2003, Mr. Chakraverty produced his identity card, salary slip, ration card and voter's identity card as proof of his residence but even this was not accepted by the Magistrate and questioned as to why Mr. Chakraverty had not brought the paper of his property or the registration certificate of his car for endorsement. It is also alleged that when the counsel insisted on accepting the surety and there was no need for surety to bring property papers or car papers, the said surety was humiliated and the matter was adjourned to 18th August, 2003 with direction to surety to bring registration certificate of his car on the next date of hearing. The petitioner, in these circumstances, has filed this petition challenging the non-acceptance of the surety offered by the petitioner.

15. The order sheet does not record the aforesaid reasons for non-acceptance of the surety and the matter is adjourned on the aforesaid date simply for production of surety. However, the comments which were called for from the Magistrate do indicate that the aforesaid sureties were offered and the Magistrate has given his own justification for not accepting the sureties. Further, it is established from the record that the petitioner had, while producing Ms. Archana Shukla as surety, offered FDR. The record further reveals that while offering Mr. Chakraverty as surety, his ration card, voter's identity card, salary slip, identity card issued by his employer, namely, Cabinet Secretariat, Government of India were produced and photocopies thereof were submitted which are on the record of the trial court. It is in this background, we have to consider as to whether the Magistrate was right in refusing the sureties furnished.

16. It is at this juncture it would be relevant to refer to the provisions contained in the Cr.P.C. It is open for the court to find out whether the surety before the court is required to be accepted as a surety or not. It is for the court to be satisfied about the sufficiency or evidence of the surety. At the same time, the court should consider that the amount of bond should not be excessive with due regard to the circumstances of the case. As indicated earlier, the offence was punishable with fine of Rs.500/- only. The Magistrate ought to have examined these aspects. Even if the Magistrate would have directed the accused to deposit a sum of Rs.500/- that would have served the the ends of justice.

17. The High Court Manual wherein instructions to the Courts below are given, is required to be referred. Chapter 10 refers to Bail and Recognizance which clearly points out that it must be understood that in case of every bailable offence, bail is a right not a favor. In demanding bail bond from an accused person, Magistrates should bear in mind the social status of the accused and fix the amount of bail accordingly; care should be taken that the amount so fixed is not excessive. The amount of the bail and the offence charged, with the section under which it is punishable, should always be stated on the face of an order directing the accused to be detained in the lock-up in default of his furnishing bail. Bail may be tendered and must be accepted at any time before conviction.

18. So far as Cash or Government promissory notes are concerned, Clause 4 of Chapter 10 reads as under:

"Under Section 513 of the Code of Criminal Procedure (See Section 445 of new Code), a deposit of cash or Government promissory notes may be made in lieu of bail, except in the case of a bond for good behavior."

19. The bail is required to be granted promptly. It is open to the court to make an enquiry about the sufficiency of bonds. That question will arise when there is doubt in the mind of the court. Clause 9 deals with inquiry about sufficiency of bonds which is as under:

"9. Inquiry about sufficiency of bonds- Considerable diversity of practice exists in carrying out the provisions of the law in regard to the taking of bonds from accused persons and their sureties, and the result of the diversity is not only to case Police officers to be employed in needless inquiries, but also to keep the accused person in custody pending the result of the inquiry into the sufficiency or otherwise of the bail offered. Sub-section (3) of Section 499 (Section 499 of new Code) (Sic.Sub-Section (4) of Section 441) now enables the court to accept affidavits for the purpose of determining whether the sureties are sufficient or not. At the same time, however, it is the duty of Magistrates to satisfy themselves that the sureties are, in point of substance, persons of whom it may reasonably be presumed that they can, if necessary, satisfy the terms of the bail-bond."

20. We are not saying that the Magistrate ought to have accepted the surety merely because the person was an Under Secretary but at the same time, considering the fact that the offence is not serious, was required to be considered by the court. The first surety Ms. Archana Shukla had produced the FDR in the sum of Rs.15,406/-. Keeping in view the nature of offence already noted above, sufficient surety was offered by the petitioner and there was no reason not to accept the same. We are, therefore, of the opinion that the act of the Magistrate demanding Government surety, in this case, was totally uncalled for. Same is the position when the Government surety was produced. Mr. Chakraverty, Under Secretary, had produced sufficient documents which not only established his identity but his position/status as well. He produced his pay bill indicating his total salary of Rs.23,007/- and amount payable was Rs.14,187/-. He also produced his ration card, card of gas connection wherein his photograph was affixed and also the identity card issued by the employer. How the Magistrate could refuse to accept such a surety? Insistence on bringing documents relating to car was, therefore, not valid.

21. In view of the provisions contained in the Cr.P.C. nature of the offence, the court is expected to decide the application. In the instant case as the summons was issued to the accused to appear in person or through a pleader and despite the fact that the pleader was not present, the court has not taken any coercive process against the accused, the petitioner herein. But under mistaken belief, the Advocate submitted an application that warrant has been issued and that is how the matter proceeded further. Therefore, it appears that the Magistrate be asked to examine the matter carefully and to pass an order on the application that may be submitted by the accused on 15th September, 2003, the date which is now fixed before the Magistrate.

22. With these observations, the petition and applications stand disposed of.