Gupta, J. - (1.) THIS is a reference made by the learned Sessions Judge, Nagaur. He has recommended that the order of the learned sub-Divisional Magistrate, Merta, refusing to exempt the applicant one Mst. Poosi, widow of Ladu Lakhari of Dhanipura, from personal appearance in Court in a case under s. 379 of the Penal Code be set aside and that she be exempted from personal appearance in Court under s. 205 Cr. P. C. The facts of the case appear to be as follows : -
(2.) ONE Sadhu Man Dass son of Bakhtawar Dass of Dhanipura filed a complaint before the sub-Divisional Magistrate, Merta, alleging that the applicant together with six other accused persons had committed a theft of grass and fodder from his field on the Shukla 3rd of Kartic s. 2005 when he was away. The learned Magistrate issued a warrant to secure the presence of all the accused including Mst. Poosi. Mst. Poosi then applied to the Court for exempting her from personal appearance in Court. This application was refused by the learned Magistrate saying that she must first appear in Court before her application could be considered. Mst. Poosi, thereupon, went up to the Sessions Judge, Nagaur, in revision, who has recommended as above saying that the complaint was filed about 9 months after the occurrence, that there was no specific allegation against the applicant, that ii was not just and proper that the applicant be put to unnecessary harassment and compelled to appear in Court until there was real need for a personal appearance and that the Magistrate should have cancelled the warrant and issued a summons to her in the first instance. I am afraid, I cannot accept this reference. It is not said that Mst. Poosi is a "pardanashin' lady. Whatever the reasons may be, the learned sub-Divisional Magistrate has not thought fit to issue a summons in the first instance nor has he thought fit to cancel the warrant issued by him even after an application under s. 205 had been made by the applicant. Under the circumstances, Mst. Poosi could not be exempted from personal attendance in the Court, under s. 205 Cr. P. C. which permits a Court to exempt an accused from personal attendance in Court in cases in which he issues a summons. The learned counsel for the petitioner argued that she could and should be exempted from personal attendance under s. 540 (A) P. C. It may atonce be stated that s. 540 (A) Cr. P. C. had no application to the facts of this case. That section provided for exemption from personal attendance of an accused who was present in the Court but could not remain present on account of some incapability to remain 'before the Court. Under the said section, no discretion is given to Court to dispense with the attendance of the accused except on account of his own incapability of remaining before the Court. I am of the opinion that Mst. Poosi cannot be exempted from personal attendance under s. 540 (A) Cr. P. C. either. Lastly, the learned counsel for the applicant invoked the inherent jurisdiction of this Court for granting the desired relief. No doubt the complaint has been filed after a pretty long period but the fact that the learned sub-Divisional Magistrate did rot think fit to issue a summons in this case and the fact that the law provides that a warrant should be ordinarily issued in such a case, cannot be overlooked. I do not think that the Magistrate has exercised his discretion to issue a warrant in the first instance improperly, I do not find myself justified in exercising inherent powers of this Court. This reference is, therefore, rejected. I However, this Court has no doubt that the learned sub-Divisional Magistrate will dispense with the attendance of Mst. Poosi or and when he considers her presence not necessary for which he has ample powers under section 353 of the Code. . ;