1. This is a reference by the learned Additional Sessions Judge of Meerut, arising out of the following facts: The trial of P. Spratt and others under Section 121-A, I.P.C., commonly known as the Meerut Conspiracy Case, is proceeding in the Additional Judge's Court. One of the accused in that case, namely R.R. Mittra, applied to the Judge for permission to visit his widowed sister who was lying seriously ill at Calcutta. The Judge forwarded the application to the District Magistrate with the remark that if and when the Local Government or the Government of India should decide to send the applicant, or allow him to go, to his house, then it would be for the Court to consider the question of dispensing with his attendance under Section 540-A, Criminal P.C.
2. On the afternoon of 26th April 1930 the Judge received, through the usual official channels, an order from the Government of India stating:
The Government of India agree that Radha Raman Mittra, an undertrial in the Meerut Conspiracy Case, may subject to the orders of the Court be permitted to visit Calcutta to see his sister who is ill, provided the Judge is satisfied that the absence of the accused during trial will not cause any delay or invalidate any part of the proceedings, that the accused is represented by counsel during the whole period of his absence, and he gives an undertaking that he will not attempt to engage in any kind of propaganda during his absence from Meerut.
3. R.R. Mittra thereupon petitioned the Judge to dispense with his attendance in Court for 15 days, so as to enable him to visit his sister at Calcutta, and gave an undertaking that he would be represented during his absence by two advocates whom he named, and that he would not engage in any kind of propaganda during his absence. The Judge then passed an order on the same date, 26th April 1930, dispensing with the applicant's attendance under Section 540-A,. Criminal P. C, for a period of 15 days subject to the conditions above mentioned. Subsequently the Judge had to reconsider the provisions of Section 540-A in connexion with a similar application for leave of absence made by another accused in respect of whom the Government of India had passed a similar order. R.R. Mittra's application had not been opposed by counsel for the Crown, and the Judge by his order of 26th April had allowed the application somewhat hastily. Upon further consideration he felt grave doubt whether that order was strictly justifiable under Section 540-A. If the order were held to be incorrect, then the question arose whether the error or irregularity was our able under Section 537, or whether he should recall the witnesses whose evidence had been recorded in Mittra's absence.
4. He has therefore made this reference under Section 438 asking for orders on two points:
(1) Whether the order of 26th April is correct; (2) if not, whether it is merely an irregularity curable by Section 537, or whether the witnesses examined in Mittra's absence should be re-examined in his presence.
5. Although it is unusual for a Judge to make a reference regarding the legality of his own order I see nothing in Section 438 to preclude him from doing so. The words 'or otherwise' are wide enough to cover the present reference. In the peculiar circumstances of this case I think the Judge was fully justified in stating his doubts and making the reference. In any case the High Court is clearly empowered under Section 439 to pass orders on this reference.
6. On the first point I think it is clear that the order of 26th April was not strictly justifiable under Section 540-A. Under that section 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 Judge took the view (in his order of 26th April) that:
if an accused is sent to Calcutta under the orders of Government... he is incapable of remaining before the Court.
7. I think this reasoning is fallacious. The Government of India granted permission for the visit to Calcutta 'subject to the orders of the Court,' i.e., subject to the Court's dispensing with the attendance of the accused under Section 540-A. The Court could only dispense with the attendance of the accused on being satisfied that he was 'incapable of remaining before the Court.' It is clear that Mittra was not 'incapable of remaining before the Court' if the words are construed in their plain and ordinary meaning. I hold therefore that the order of 26th April was not correct. The next question is whether the error or irregularity in procedure is curable under Section 537. I think the answer is clearly in the affirmative. The Judge was wrong in dispensing with the attendance of the accused, but the error is of minor importance. The accused was represented by counsel, at his own request, throughout his absence. There is no suspicion of any unfairness and it seems hardly possible that the accused could have been prejudiced in any way. The Court has been too indulgent in granting his request, but that is not a matter of which he can justly complain. The error obviously does not go to the whole root of the trial. No vital rule of procedure has been broken. On the principles laid down in Emperor v. Bachu Chaube A.I.R. 1923 All. 81 the error is not such an illegality as to vitiate the proceedings against Mittra during his absence. I hold that Section 537 is applicable and that the error or irregularity in the proceedings will not vitiate any sentence or order that may be passed against Mittra unless it can be shown that such error or irregularity has in fact occasioned a failure of justice.
8. It follows that it is unnecessary to recall the witnesses examined in Mittra's absence, and to record their evidence over again in his presence, merely for the purpose of remedying a possible technical defect. The only question is whether the procedure adopted can be shown to have in fact occasioned a failure of justice. It seems prima facie unlikely that such an argument could be seriously advanced, but it is impossible for me to anticipate what points might be raised in support of such an argument. In my opinion it would be advisable for the Judge to question Mittra and his counsel on this point and if they can show that Mittra has in fact been prejudiced in any way by the evidence of any witness being recorded in his absence then that witness should be recalled and examined or cross-examined in his presence.
9. As Mittra must have availed himself of the concession granted by the order of 26th April it is unnecessary for me formally to set it aside. For the same reason I consider it unnecessary to issue notice to him under Section 439(2) as my order cannot be held to be made 'to the prejudice of the accused.' My order regarding the legality of the order of 26th April, passed in his favour is purely of academic interest so far as he is concerned. He has already enjoyed the benefit of that order. The reference is accepted in the terms set forth above.