Decided on August 14,1952

STATE Respondents

Referred Judgements :-



Sharma, J. - (1.)THIS is an application by the complainant, Iqbal Hussain, in a case under secs. 147, 379 and 325 of the Indian Penal Code, which has been challaned in the Court of Extra Magistrate, Chirawa at Jhunjhunu, against Fateh Mohammad Shah and others. Fateh Mohammad Shah made an application before the Magistrate that he be exempted from personal attendance under sec. 205 of the Code of Criminal Procedure, because he was a Shajjadanashin, and had a lot of disciples, and was an old man of 60. The learned Magistrate exempted him from personal appearance on both the grounds of respectability as well as age. Against this order, the applicant Iqbal Hussain went in revision to the Court of Session at Jhunjhunu. The learned Sessions Judge held that sec. 205 Cr. P. C. was not applicable, but dismissed the application for revision on the ground that exemption could be given under sec. 353 Cr. P. C. The complainant has now come to this Court in revision.
(2.)IT was argued by the learned counsel for the applicant that sec. 205 Cr. P. C. was not applicable according to the view of the learned Sessions Judge himself. He argued that sec. 353 Cr. P. C. too was not applicable as what it lays down is that all evidence taken under Chapters XVIII, XX, XXII, and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. IT does not authorise the court to exempt an accused from personal appearance. He further argued that although in the Sessions judgment no reference is made to sec. 540 A, yet even that section was not applicable, as it applied when any one or more of several accused is, or are incapable of remaining before the court. He proceeded to argue that even the residuary sec. 561 A, which confers inherent power on he High Court was not applicable. The accused Fateh Mohammad Shah could not, therefore, be legally exempted from personal appearance in court. He also argued that the grounds on which exemption was given were also not sound. The fact that an accused was a respectable man or a religious head would not by itself entitle an accused to exemption from personal appearance in a criminal case For this he relied on Art. 14 of the Constitution of India. As regards old age, he argued that first of all there was controversy as to the age of the accused, but even if it be assumed that he was 60 years old, that fact alone was not sufficient for giving him exemption.
Rulings of various High Courts for and against him were very fairly and frankly put by the learned counsel for the applicant. It was decided in Re Hasanath (1) (A. I. R. 1947 Madras 433.) that sec. 205 Cr. P. C. applies only to cases in which the Magistrate has issued a summons in the first instance and not where the accused had been arrested without or after the issue of a warrant. " It was further held that "sec. 353 by necessary implication confers power on the presiding officer whether he is a Magistrate or a Sessions Judge or a Judge of the High Court to dispense with the personal attendance of an accused person. " It was also held that "sec 561a is wide enough to confer power on High Court to direct the Magistrate to dispense with the presence of accused during an enquiry before him. " The ruling of a Division Bench of the Allahabad High Court in the case of Aditya Pd. Bagchi vs. Jogendra Nath Maitra (2) (A. I. R. 1948 Allahabad 393.) also lends support to the view that such a power is implied under sec. 353. Again, there is a Full Bench ruling of the Allahabad High Court in the case of Sultan Singh Jain vs. The State (3) (A. I. R. 1951 Allahabad 864.), in which it was held that "the reference in sec. 353 to the power of a trial Court to dispense with the personal attendance of an accused clearly implies that the trial Court has such a power of granting exemption. " In Rajkumar Singh vs. State through Director of Food, Madhya Bharat, Indore (4) (A. I. R. 1951 M. B. 28.) it was held that "under sec. 561a. High Court has inherent power to excuse the personal attendance of the accused in the trial and permit him to appear by a pleader. " Sec. 353 has also been referred to, but no clear view was expressed so far as the said section was concerned. In a Single Bench ruling of this Court in the case of Mst. Poosi vs. Man Das (5) (1951 R. L. W. 27.) from the remarks of Gupta, J. at the end, it may be implied that the trial Court has power under sec. 353 of the Cods to exempt an accused from personal appearance. So far as the rulings cited before me are concerned, only the Nagpur High Court has struck a dissenting note. It has been held by a Division Bench of that Court in the case of Madho Rao Narayan Rao Ghatate vs. Iswardas Sheoratan Bagdi (6) (A. I. R. 1949 Nagpur 334.) that sec. 353 does not by necessary implication confer power on the presiding officer, whether he is a Magistrate or a Sessions Judge or a Judge of the High Court, to dispense with the personal attendance of an accused person. It was, however, held that "where there is neither any specific provision of law nor any general principle of criminal jurisprudence which would conflict with the exercise of the inherent power, it can be exercised, if it is necessary to do so, by the High Court to give effect to any order under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The High Court has inherent powers under sec. 561a to exempt an accused from appearance in Court beyond those contained in secs. 205 and 540 A. " On a review of all these authorities, there appears to be; more or less, controversy on the question whether sec. 353 gives power to the trial Court to exempt an accused from personal appearance or not. So far as sec. 205 is concerned, the question is not free from difficulty whether an accused, who appears before the court before summons or warrant is issued, is entitled to apply for exemption from personal appearance. Similarly, the question whether under the circumstances of the case, exemption could be granted to the accused under sec. 540a Cr. P. C. is not free from difficulty. The contention of the learned counsel for the applicant is that none of these three sections applies to the facts of the present case. Without deciding that it is so, I have got to see whether this Court has got any power to direct the Magistrate to exempt the accused from personal appearance. As I have said above, there are authorities supporting the view that the High Court can, under sec. 561a, exempt an accused from personal appearance before the trial court for any of the reasons given under sec. 561 A. In the present case, I do not lay much importance to the ground that the accused is a Shajjadanashin, and by virtue of his respectability his personal attendance should not be insisted upon. The fact, however, remains that both the lower courts have held that he is an old man of 60. An affidavit was filed by the accused before the Sessions judge, in which it has been sworn that he is 6o years old. As I have said above, both the courts have believed that the accused is an old man, and have, therefore, considered it fit to give him exemption from personal appearance. The allegations against him are that from behind a bush he cried out instigating other accused to assault the complainant. As the case unfolds itself, it will be seen what evidence is produced in support of this allegation. At present all I need say is that looking to the allegations in the police report and the age of the accused, it would be in the ends of justice that he be exempted for the time being from personal appearance. Of course, the learned trial court will be at liberty to consider this question at any subsequent stage whenever it is necessary.

I, therefore, dismiss the application for revision. .

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