Teja Singh, J. - (1.) KEWAL Krishan was convicted by the A.D.M. Kapurthala Under Section 307, I.P.C. and was sentenced to four years' R.I. and in addition to pay a fine of Rs. 500/ - or in default to undergo further R.I. for six months. His appeal having been dis -missed by the (Sessions Judge, he preferred a revision petition to this Court. Along with this Mst. Shakuntla for attempt to murder whom Kewal Krishan was convicted preferred a petition for the enhancement of his sentence. Both the revision petitions came up for hearing before my learned brother, but as he thought that one of the questions of law urged on behalf of Kewal Krishan was not only important but the opinions of the various High Courts on it were different, he has referred the whole case to the Bench.
(2.) KEWAL Krishan is married to Shakuntla's elder sister, Mst. Janak Dulari. Both sides are agreed that the marriage took place year before the occurrence but in a few months the relations between husband and wife became strained and Mst. Janak Dulari went back to her parents, who were then residing at Kapurthala. Mst. Shakuntla is still unmarried, she gave her age as 18 years and it appears from her statement that she has recently passed the Matriculation Examination of the Punjab University. According to her the incident took place about 1 -30 p.m. She was sitting in one of the rooms of her father's house and was busy in reading a book. As chance would have it all members of her family including her parents, brors. and sisters were away and she was the only inmate of the house present when Kewal Krishan entered the room, tied Shankutla's hands with a piece of rope which he was carrying and then shut her in a small Kothari adjoining to the room where she had been sitting. After chaining the door of the Kothari from outside he went to the courtyard, sprinkled kerosene oil which he had been able to find in the house on some pieces of wood that happened to be lying there and set fire to them. When the fire was ablaze he went to the Kothari, brought Mst. Shakuntla out of it and pushed her into the fire. Shakuntla raised a hue and cry on which Kewal Krishan made good his escape and after he had left, Shakuntla managed to extricate herself from the burning fire. P. W. Hari Ram was the first to be attracted to the scene by Shakuntla's cries. He was followed by P. W. Lal Singh and two or three women. They helped Shakuntla in extinguishing the fire which her cloth had caught. A doctor was then sent for and he gave Shakuntla an injection. Then she was taken to the Government Hospital. In the meanwhile a police constable had got the news which he carried to the police station. On receipt of the news A.S.I. Bal Mukand reached the hospital and recorded Mst. Shakuntla's statement which formed the P.I.R. in the case. According to the F.I.R. the case was registered at 2 p.m. It was argued by the Petitioner's counsel that the time of the registration of the case was not correct, because it is in the evidence of P. W. 4 Dr. Gurdit Singh who medically examined Mst Shakuntla that the examined Ms Shakuntla, In the hospital at 4 p.m. and the examination did not take more than 15 or 20 minutes. Unfortunately no question was put to the doctor regarding the statement that Mst. Shakuntla made to the, A.S.I. nor was the A,S.I. questioned on the point So the time given by the doctor cannot be used to contradict the time given by the A.S.I. In any case even if we agree with counsel that the case was registered not at 2 p.m. but sometime between and 4 p.m., it cannot be said that there was any great delay in lodging the F.I.R. particularly so, when, we remember that before Shakuntla was taken to the hospital and her statement was recorded, a private doctor was sent for to render where some sort of first aid. In addition some time must have been spent to inform her parents or other relations too. It is in. evidence that the police was not able to arrest Kewal Krdshan during the investigation of the case. Accordingly they applied to the A.D.M. for warrants and it was in execution of the warrants issued by him that he was arrested at Ludhiana on 31 -1 -52. The case was put in Court with the final report on 6 -2 -52 and the first witness for the prosecution namely Hari Singh was examined on 15 -2 -52. The prosecution evidence concluded on 7 -3 -52 and the accused was charged on 10 -3 -52. After further cross -examination of the witnesses the accused entered upon his defence and examined as many as 14 witnesses, two in Court and 12 on commission at Delhi. His last witness was examined on 13 -6 -51. Not being satisfied with all this his learned Counsel made Anr. effort before us to further protract the proceedings and prayed that the conviction be quashed and the case be remanded for further cross -examination of Mst. Shakuntla and the eye -witnesses, for supplementary statement of the accused and for production of additional evidence if it became necessary. in order to be able to understand the position of learned Counsel it is necessary to mention what happened in the trial Court. After the prosecution evidence had concluded and the accused had been charged, he was questioned whether he wanted to have the prosecution witnesses further cross -examined. The answer being in the affirmative the case was adjourned to 29 -3 -52. On 27 -3 -52 counsel for the accused made an application to the Magistrate alleging that it was impossible for his client to be present in Court on 29 -3 -52 because his father died four days ago and he could not stir out of his house because of the religious ceremonies that he has to perform and praying that the case be adjourned for at. least two weeks. The complainant's counsel appended a note to the application that he had no objection to the adjournment of the case provided the P.I. agreed to it. P.I.'s note was that the was agreeable to the adjournment. When the 'application came up before the trial Magistrate he refused to grant the adjournment prayed for but exempted the accused from personal attendance on the date in question i.e. 29 -3 -52. The result was that the case was heard by the Magistrate on 29 -3 -52 in the absence of the accused and the prosecution witnesses present on that day were further cross -examined in the absence of the accused though in the presence of his counsel who conducted the cross -examination of the witnesses. Counsel for the accused urges that this procedure was illegal inasmuch as it contravened the provisions of Section 353, Code of Criminal procedure and either the case should be remanded for having those witnesses further cross -examined in the presence of the accused or their evidence should be altogether ignored. Section 353 says Except as otherwise expressly provided, all evidence taken under Chaps. XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the I accused, or, when his personal attendance is' dispensed with, in presence of his pleader. Counsel maintained that the only sections of the Code of Criminal Procedure under which per -sonal attendance of an accused person can be dispensed with are Sections 205 and 540A and since neither of these sections applies to the present case, the Magistrate had no power to record the further cross -examination of the witnesses in the absence of the accused. Counsel for the State on ' the other hand argued that even though criminal Courts have power to dispense with personal attendance of an accused person under Sections 205 and 540A, this does not prevent them from dispensing with his presence at the time of recording the evidence and examining the witnesses for the prosecution in his absence under Section 353, which gives the Court implied powers for this purpose. Now it cannot be denied that Section 540A applies only to those cases in which "the accused are two or more and it can have no applicability when in a case like the present the accused is only one. A perusal of Section 205 would go to show that the operation of it is confined to the first hearing in the case for which the summonses have been issued to him. It neither applies when instead of issuing summons the Magistrate issues a warrant for the arrest of the accused nor does it empower the Magistrate to dispense with the attendance of the accused for a hearing other than the first. This means that when there is only one accused person in the case and either the Magistrate issued warrant for his arrest instead of summons or the evidence is to be examined on a day after the first hearing in the case if we accept the plea of the accused's counsel the accused cannot be given advantage of Section 353, i.e., in no case can the prosecution evidence be recorded in his absence. Such a construction in my opinion would not be consistent with the word "or" used in the section. The plain meaning of the section is that all evidence in a criminal case should be taken in the presence of the accused but there are two exceptions to it, first when it is otherwise expressly provided in the Code and these provisions are contained in Sections 205 and 540A, and second when the Court makes an order that the evidence be recorded in the absence of the accused, but in the presence of his pleader. As I have pointed out Sections 205 and 540A do not cover all cases. So the provision enabling the Court to make an appropriate order in a case which does not fall within the ambit of the above sections was necessary and it was for this purpose that the concluding part of Section 353 was enacted. I may also mention that since the Legislature did contemplate cases in which evidence can be recorded in the absence of the accused and in the presence of his pleader and did make some provision for them, there is nothing unreasonable in the construction that the State counsel wants us to place upon Section 353, i.e., to hold that Section 353 gives the Court an implied power for allowing evidence to be recorded in the absence of the accused in cases which do not strictly fall within the four corners of other provisions. It is unnecessary to labour the point because this view is supported by a number of authorities. The earliest case that has been cited before us is the decision of Davar J. in 'Emperor v. O. W. King' , 15 Ind Cas 96 (Bom) (A), who held that under the provisions of S section 353, code of Criminal Procedure a High Court has the power to dispense with the attendance of an accused during his trial. In 'Kandamani Devi v. Emperor : AIR 1922 Mad 79(1) (B) Anr. learned Judge of the Madras High Court held that a Sessions Judge has power to dispense with the personal attendance of an accused and allow him to appear by pleader during the trial Under Section 353, Code of Criminal Procedure Both these cases were followed by Rajamannar J. in 'In re Ummal Hesanath : AIR 1947 Mad 433 (C). The learned Judge after discussing the scope of Section 205 and comparing it with Section 353, Code of Criminal Procedure held that the latter section by necessary implication confers power on the presiding officer of a criminal Court, 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. The same view was taken by a Bench of the Allahabad High Court In Aditya Pd. Bagchi v. Jogendra Nath : AIR 1948 All 393 (D) and was confirmed later by a Pull Bench of the same Court(FB) (E) As regards Section 353 it was held that the refer rice: in the section to the powers of trial Court; to dispense with the personal attendance of the accused clearly implies that the trial Court has such a power of granting exemption. A Bench of the Assam High Court followed the view of the Allahabad High Court in 'Mst. Kamal Debi v. Panna Lal : AIR 1952 Gau 151 (F) The Petitioner's counsel drew our attention to a decision of the Nagpur High Court 'Ma -dhao Rao v. Iswardas Sheoratan', : AIR 1949 Nag 334 (G) and an unpublished decision of a single Judge of the Simla High Court 'Cri. Misc. No. 334 of 1948 (H) in which a contrary view was taken, but the weight of authority is on the other side Accordingly I overrule the objection & hold that the trial Magistrate was within his rights in recording further cross -examination of the witnesses on 29 -3 -52 in the presence of the counsel for the accused but in the absence of the accused himself because his personal attendance had been dispensed with. Before turning to the other points I. wish to add that though the trial Magistrate while dispensing the presence of the accused did not say in so many words that he was doing so at the request of the counsel for the accused there can be no doubt that counsel who was present when the Magistrate passed the orders must have been a consenting party and this is as good as if the order had been made at his request. This conclusion is further strengthened by the fact that on 29 -3 -52 when the witnesses were further cross -examined the accused brought a counsel from Delhi to conduct the cross -examination and it is not even alleged that either his counsel or the accused who was present in Court on subsequent hearings ever objected to the cross -examination of the witnesses in his absence. Cross -examination of the witnesses both on the day when they appeared first and on the subsequent day was fairly lengthy and even searching. -This means that no prejudice was caused to the accused. In fact the accused's counsel does not even contend that his client has suffered in any way because the further cross -examination of the witnesses took place in his absence. This makes us think that the objection raised by the counsel is frivolous and without any substance.
(3.) TWO other technical points were urged by the accused's counsel one that the examination of the accused Under Section 342 was not exhaustive and the second that he was called upon to enter upon his defence before the prosecution evidence had concluded. As regards the first the record shows that the accused was examined on two occasions, first on 7 -3 -52 and then on 16 -5 -52 and on both occasions he was questioned about all the points brought out in the prosecution evidence. The only defect that counsel was able to point out is, that the questions which related to the occurrence did not mention its time. This is altogether wrong because the time is given in the question. No other omission was alleged or proved, nor were we' told how the examination of the accused was defective. Moreover counsel was constrained to admit that whatever the omissions were they did not result in any kind of prejudice to his client. As regards the second point it is true that the accused was asked to put in the list of his witnesses when two of the prosecution witnesses who were merely of formal nature had yet to be examined, but the actual examination of the defence witnesses did not take place before the prosecution evidence had concluded. No prejudice to the accused was alleged even in this connection and consequently these objections are also overruled.;