R.DAYAL, J. - (1.) THIS is an application under Section 561A, Criminal Procedure Code for ordering the exemption of the applicant from personal attendance at the hearings of a case under Sections 420, 120B and 109, Penal Code, on the ground that the trial of the case will require a very large number of hearings and that on account of the applicant's frequent presence his business will be practically ruined.
(2.) I have not heard the learned counsel for the parties on the merits as to how far, in the circumstances of this case, the applicant should be granted exemption, as I find that the Division Bench case of M.G. Desai v. Emperor, AIR 1932 All 504 goes against the applicant. It was held in that case : "This Court will only act on its inherent powers where those powers can be exercised without conflict with the existing law."
(3.) IT was held that the case of the applicant did not come within the provisions of Section 540A, Criminal Procedure Code The application for exemption was rejected and it was also remarked : "This is one of those cases which may act hardly on a particular person; but in our opinion it would create a most dangerous precedent to grant exemption to the applicant for reasons which are not covered by Section 540A, Criminal Procedure Code" It has been held in the case of Ummal Hasanath, In re, AIR 1947 Mad 433, in Madho Rao v. Iswardas Sheoratan, AIR 1949 Nag 334 and in Rajkumar Singh v. State, AIR 1951 Madh B 28, that in cases to which Section 540A, Criminal Procedure Code does not apply the Court can exercise its inherent powers under Section 561A in proper cases and exempt accused from personal attendance. It appears to me that in the circumstances the case of M.G. Desai v. Emperor, AIR 1932 All 604, may require reconsideration and that, therefore, this application be laid before a larger Bench. I, accordingly, order that the papers be laid before the Hon'ble the Chief Justice for referring the case to a larger Bench. OPINION OF THE FULL BENCH Malik, C.J. : - There are two cases pending against the applicant in the Court of a Magistrate first class at Meerut. The applicant had made two applications before the learned Magistrate under Section 540A, Criminal Procedure Code for exemption from personal appearance in Court. The ground given was that the applicant had certain government contracts to execute and his continued presence in Meerut would be detrimental to government work. The Magistrate dismissed the applications. Copy of the order of the Magistrate has not been filed in this Court. It is not necessary for us in this case to decide what the words "incapable of remaining before the Court" in Section 540A mean. It, however, appears to us that the mere fact that the presence of the accused at the place where the trial was being held would be detrimental to government work does not make the accused "incapable of remaining before the Court" and therefore the applications were rightly rejected.;