1. This revision is directed against the order dated 12-2-1955 passed by the Additional Sessions Judge, Balaghat. in Criminal Revision No. 89 of 1954 refusing to interfere with the order dated 18-10-1954 passed by the Magistrate First Class, Waraseoni, in Criminal Case No. 100 of 1954.
2. The non-applicant No. 1 has filed a complaint under Section 500 of the Indian Penal Code in the Court of the Magistrate First Class, Waraseoni. The two applicants, who are the accused in the criminal case, were ordered to be summoned for 24-8-1954. On that date, the applicant No. 2 appeared through Shri Khadilkar pleader, who applied for his exemption from personal appearance on the ground that he is busy in connection with his business. Applicant No. 1 was not served, and so a fresh summons was ordered to be issued to him. The case was fixed for 30-9-1954. On that date, the applicant No. 1 was served but was absent. He was represented by Shri Khadilkar, who made an application on his behalf also for exemption from personal attendance on the ground of dislocation of business and heavy expenses and harassment. The Magistrate of the trial Court passed the following order on 18-10-1954:
Complainant with Shri Tiwari. Accused Natwarlal by Shri Khadilkar, Accused Chimanlal absent but served. Shri Khadilkar appears for him and requests the Court that he would furnish surety on the next hearing. The accused is released on a bail of Rs. 500/- with one surety in the like amount. He should execute the bail bond and furnish surety positively by the next hearing.
Shri Khadilkafr makes an application for exemption of accused Chimanlal from personal attendance. Shri Tiwari raises no objection, except that on the date of evidence the accused must appear. I order that the accused must appear on the date of next hearing. There after he is personally exempted to appear subject to the discretion of the Court.
P. Ws. be summoned P. P. at once. Case for 22-11-1954.
3. The Additional Sessions Judge was of the opinion that the only Section which can be invoked for the purpose of the present case was Section 540A of the Code of Criminal Procedure and although the Magistrate did not give the reasons why he required the personal attendance of the accused at the stage of recording evidence, the Additional Sessions Judge thought that it might be for the sake of their identification. The Additional Sessions Judge refused to interfere with the order of the Magistrate as it was in the discretion of the trying Magistrate to direct the accused to remain pre- sent on any particular date of hearing.
4. It was contended on behalf of the applicants that the original order and the summons having been under Section 205(1) of the Criminal Procedure Code, the trying Magistrate should have exercised his discretion in exempting the applicants from personal attendance. On behalf of the applicant No. 1, it is urged that he is busy with his business at various places, and on behalf of the applicant No. 2 it is urged that by having to appear on various dates the business of several companies would be dislocated and would involve heavy expenditure and harassment.
5. As against this, it was contended that under Section 205 of the Code of Criminal Procedure, the Magistrate can dispense with the personal attendance of the accused only when he issues a summons and it does not confer upon him power to dispense with the attendance of the accused during his trial. It was also contended that the case did not fall within the ambit of Section 540A of the Criminal Procedure Code as it applies to cases where the accused remains absent due to physical incapacity. Several cases were cited at the Bar by the counsel in support of their contentions.
6. In Emperor v. Radha Raman : AIR1930All817 it has been held as follows:
Under Section 540 A the Court can dispense with the attendance of an accused person who is represented by a pleader and proceed with the trial in his absence only if the Court is satisfied that the accused is incapable of remaining before the Court. No discretion is given to dispense with the attendance of an accused upon any other ground.
The same view was taken in Kali Das Banerjee v. The State : AIR1954Cal576 . As to the scope of Section 205 of the Code of Criminal Procedure, it was held in this case that the section does not confer upon a trial Court the power to dispense with the personal attendance of an accused during his trial. The section has reference to an exemption already granted by the Magistrate issuing summons.
The learned Judges in the above case dissenting from the view taken by Rajamannar J. (as he then was) in In re Ummal Hesanath AIR 1947 Mad 433 held that Section 353 does not confer upon a Magistrate trying a case any power to dispense with the personal attendance of the accused during the trial. See also Madhao Rao v. Iswardas Sheoratan 50 Cri. L.J. 932 : .
7. I am in respectful agreement with the view taken in Kali Das Banerjee v. The State, (B) (cit. sup.) that the words 'incapable of remaining' in Section 540 A refer to an accused's physical incapacity to remain before the Court. But where he is only inconvenienced if his attendance is required in Court it is not a case of physical incapacity precluding his attendance in Court. The provisions of Section 540 A of the Code of Criminal Procedure, therefore, do not apply in the instant case.
8. It has been held in Madhao Rao v. Ishwardas Sheoratan (D) (cit. sup.) - a decision of the Division Bench of our High Court -that where there is neither any specific provision of law nor any general principle of criminal jurisprudence which could 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 Section 561 A to exempt an accused from appearance in Court beyond those contained in Section 205 and Section 540 A.
9. In view of the reasons given by the applicants as stated in their applications, that they have extensive business in various places and it would involve them in heavy expenditure and would cause harassment if they are compelled to appear before the trial Court on each and every hearing. I, excuse the personal attendance of the applicants under Section 56} A of the Criminal Procedure Code and permit, them to appear by a pleader.
There is hardly any ground that their presence would be needed for the purpose of identification as observed by the Additional Sessions Judge. Shri Dabir, who appears for them, undertakes to produce the applicants whenever the Magistrate would find it necessary.
10. The revision is allowed.