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Madhao Rao Narayan Rao Ghatate Vs. Iswardas Sheoratan Bagdi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ932
AppellantMadhao Rao Narayan Rao Ghatate
Respondentiswardas Sheoratan Bagdi
Excerpt:
- - c, deals with a case where there are :(l) two or more accused and (2) the judge or magistrate is satisfied that any one or more of such accused is or are incapable of remaining before the court. and it would lead to abuse of the process of court or to failure to secure the ends of justice if in. 0. as well as the general principles of criminal jurisprudence.order1. the questions referred to us are:1. whether the high court has inherent powers to exempt an accused from appearance in court beyond those contained in ss. sos and 610-a, criminal p. c. and2. is ml saji v. mt. bhimi rightly decided ?2. the sections which deal with or are said to deal with the power to dispense with the personal attendance of the accused are sections 205, 363 and b40a, criminal p.c.3. section 205, criminal p. 0. only deals with the cases in which a magistrate issues a summons. it thus does not cover those cases in which warrants are issued or the accused are j brought under arrest or the accused appears ' before any process is issued.4. section 353, criminal p. c, lays down that except as otherwise expressly provided, all evidence shall be taken in the presence of.....
Judgment:
ORDER

1. The questions referred to us are:

1. Whether the High Court has inherent powers to exempt an accused from appearance in Court beyond those contained in Ss. SOS and 610-A, Criminal P. C. and

2. Is ML Saji v. Mt. Bhimi rightly decided ?

2. The sections which deal with or are said to deal with the power to dispense with the personal attendance of the accused are Sections 205, 363 and B40A, Criminal P.C.

3. Section 205, Criminal P. 0. only deals with the cases in which a Magistrate issues a summons. It thus does not cover those cases in which warrants are issued or the accused are j brought under arrest or the accused appears ' before any process is issued.

4. Section 353, Criminal P. C, lays down that except as otherwise expressly provided, all evidence shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. It has been held in Emperor v. G. W, King, 14 bom. L. E. 236 : 15 I. O. 96: 18 cri. L. J. 464 In re Kandamani Devi, 45 Mad, 359 : a.i.r. 1922 Mad. 79: 23 Or. L.J. 266 and In re Ummal Easanath, a.i.r. 1947 Mad. 433 : 48 cri. L.J . 874 that 8. 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. We have oon-sidered the wording of Section 353 very carefully and Bay with great respect that we are unable to agree with that view. The words used are 'when his personal attendance is dispensed with,' The conditions under which personal attendance can be dispensed with are not mentioned therein and we do not think that it confers power en Courts to dispense with personal attendance of the accused.

5. The third provision, namely Section 540-An Criminal P. C, deals with a case where there are : (l) two or more accused and (2) the Judge or Magistrate is satisfied that any one or more of such accused is or are incapable of remaining before the Court. So there are a large number of cases which are not covered by the two provisions, namely S3. 205 and 540-a, Criminal P. C; and it would lead to abuse of the process of Court or to failure to secure the ends of justice if in. herent power to dispense with the personal attendance of the accused in proper cases is not poetesses by the High Court.

6. Section 561-A, Criminal P. C, which was added by the Criminal Procedure Code (Amend-ment) Act, XXVIII [18] of 1923, deals with the High Court's inherent powers and their Lordships of the Privy Council in Emperor v. Khwaja ' Nazir Ahmad A.I.R. 1945 P.O. 18 : 46 Cri. L.J. 413 observed:

It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. the section gives no new powers, it only provides that those which the Court already inherently possess Shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act.

7. It is the impression which their Lordships o the Privy Council wanted to remove by the last part of the above extract which has led to the decision in M. Q. Desai v. Emperor A.I.R. 1932 ALL. 604 : 34 Cri. L. 3. 433 That was a case where one of the accused applied for exemption from attendance at the Court for ten days in order that he may see his mother in Bombay , who was ill and it was held that exercise of inherent powers under Section 661-A, Criminal P. 0. would conflict with the provisions of Section 540-A ibid.

8. as we have already said, Section 640A, Criminal P. C, deals only with those cases where there are two or more accused and any one or more of them is or are incapable of remaining before the Court, In those circumstances any Magistrate or Judge trying the case can exercise the power under that section. Section 661-A, Criminal P. C., on the other hand, deals only with the inherent power of the High Court and that power can be invoked to give effect to any order passed under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is clear from this that in proper cases the High Court can exercise its inherent power to give effect to the order of sub-ordinate Court or to prevent abuse of the process of a subordinate Court or otherwise to secure the ends of justice in connection with the proceedings before it. We are unable to see how the exercise of the inherent power by the High' Court under 8. 661-A would conflict with the provisions of 8. 640-A, Criminal P. C, in cases which are not covered by that provision. A3 observed by Shadi Lai C. J., in Emperor v. Sukh Dev and others A.I.R. 1929 Lah. 705 : 81 Or. L. J. 977 the inherent jurisdiction of the Court, which receives recognition in s, 661-A, Criminal P. C, cannot be invoked for the pur-pose of doing an act which would conflict with any of the provisions of the law or the general principles of criminal jurisprudence. The rule of law is firmly established that, when a statute corners upon the Court a specific power, the Court cannot, by relying upon its inherent jurisdiction, extend the scope of that power. That was a case wherein the accused, who was ill, was not represented by a pleader and the Court proceeded with the case by assigning him a pleader without his consent. That was certainly against the provisions of Section 540-a (a), Criminal P. 0. as well as the general principles of criminal jurisprudence.

9. The other cases cited by the learned Counsel for the non- applicant were of a similar type. In oases of that type the inherent power under 8. 661-A, Criminal P. 0.,cannot be invoked, but in other cases 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, we are of opinion that 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. This view was taken not only in Mt. Saji v. Mt. Bhimi, 26 N. L. B. 50 : A.I.R. 1930 Nag. 611 31 Cri. L. J. 284 but also recently in In re Umrnal tlesanath A.I.R. 1947 Mad. 433 : 48 Or. L, J. 874 where Rajamannar J. remarked that the language of Section 561A, Criminal P. C, was wide enough to confer power on the High Court to direct the Magistrate to dispense with the presence of accused during an enquiry before him. That is, we consider, the correct view.

10. Our answer to the first question referred to us is, therefore, in the affirmative i. e., the High Court has inherent powers under 8. 561-A, Criminal P. C, to exempt an accused from appearance in Court beyond those contained in SB. 205 and 540-A, ibid.

11. Our answer to the second question is also in the affirmative, namely, that the case Mt, Saji v. Mt. Bhimi, is rightly decided.


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