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Dhiria and ors. Vs. JainaraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 299 of 1968
Judge
Reported inAIR1970Raj102; 1970CriLJ729; 1969()WLN99
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 203, 252 and 540A
AppellantDhiria and ors.
RespondentJainaraIn and anr.
Appellant Advocate J.K. Jain, Adv.; G.M. Mehta, Dy. G.A.
Respondent Advocate M.L. Shrimali, Adv. for Respondent No. 1
Cases ReferredSarkar v. Madhoram
Excerpt:
.....personal exemption. - - 540a (1) 'at any stage of an inquiry or' trial under this code, if the judge or magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, the judge or magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. any magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance .if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either 'inquiry'..........before me moved a revision application and the learned sessions judge while observing that the learned magistrate had dismissed the application for exemption laconically and his order was not proper because no reasons for rejection of the application were set out. the learned sessions judge however declined to make a reference to the high court because he thought that it was hardly worthwhile making a reference of such a small matter to the high court as it was likely to take a long time. in his view, the ends of justice would have been met if another application was made to the learned magistrate and it was considered by him in the light of the observations made by the learned sessions judge, without making any such application before the magistrate, the petitioners have come up.....
Judgment:
ORDER

B.P. Beri, J.

1. This is a criminal revision application against an order whereby the bail-bonds and surety-bonds of 29 petitioners have been ordered to be forfeited by the Munsif Magistrate, Pali.

2. The Munsif Magistrate Pali took cognizance of an offence under Sections 430/147 I.P.C. against 30 accused persons on a complaint moved by Jainarain. Warrants were issued for the appearance of the accused on the 23rd January 1968. One of the accused persons Sawaram appeared before the Munsif Magistrate but on behalf of the other 29 accused persons an application was made praying that their personal presence be dispensed with under Section 540A, Cr. P. C. and they may be permitted to appear through their pleader because it was sowing season and these 29 agriculturists were required to be present on their fields. The Magistrate dismissed the application by saying that there were no appropriate grounds for granting the applicants an exemption and simultaneously ordered the forfeiture of the bail-bonds and the surety bonds. The 29 petitioners before me moved a revision application and the learned Sessions Judge while observing that the learned Magistrate had dismissed the application for exemption laconically and his order was not proper because no reasons for rejection of the application were set out. The learned Sessions Judge however declined to make a reference to the High Court because he thought that it was hardly worthwhile making a reference of such a small matter to the High Court as it was likely to take a long time. In his view, the ends of justice would have been met if another application was made to the learned Magistrate and it was considered by him in the light of the observations made by the learned Sessions Judge, Without making any such application before the Magistrate, the petitioners have come up before me.

3. Mr. Jain appearing for the applicants submits that these 29 villagers who are residents of village Rana, District Pali, a famine stricken area, were required to be present at their fields at the time in question, and it was a fit case where the powers under Section 540A, Cr. P. C. ought to have been exercised in their favour rather than an order of forfeiture of the bail bonds and surety bonds more particularly because the complaint itself is the result of vindictiveness.

4. Mr. Shrimali appearing for the opposite party Jainarain submitted that in this case warrants were issued in the first instance and therefore Section 205 Cr. P. C. was inapplicable. Section 540A, Cr. P. C. was also inapplicable, submitted learned counsel, because it was only after an inquiry had commenced that such an application was possible. No inquiry could commence unless the accused were present before the court and, therefore, such an application in their absence could not have been made in the circumstances of this case.

5. Section 540A, Cr. P. C. reads as follows:

'540A (1) 'At any stage of an inquiry or' trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.' (The underlining (here into ' ') is mine.) The underlined words 'At any stage of an inquiry' call for interpretation. The principal argument of the learned counsel for the opposite party is that it was premature for the applicants to have moved the Munsif Magistrate Pali.

6. The word 'inquiry' has been defined in Section 4(1)(k) Cr. P. C., which reads:

' 'Inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court'.

This definition while including all inquiries within its ambit excludes trials from its circumference, I agree with Mr. Shrimali that the stage for trial had not reached in this case because as laid down in Hasta v. Emperor, AIR 1914 Lah 561 (2) (FB) when a charge has been drawn up and read and explained to the accused and he has pleaded that the 'inquiry' becomes a 'trial'. The same is the view of our High Court in Sarkar v. Madhoram, AIR 1950 Raj 34 where it has been observed that in warrant cases the trial can be said to begin only after the charge is framed and the proceedings before a charge is framed only amount to an inquiry.

7. The question which calls for consideration is whether on the 23rd January, 1968 when the accused applicants were required to appear before the learned Magistrate, was it any stage of an inquiry? In my opinion the answer to this question must be in the affirmative. My reasons briefly are that after cognizance was taken of an offence on a complaint under Section 190 (1) (a), the stage of Section 200 of the Code of CriminalProcedure was reached when the complainant was examined and the witnesses present if any could also be examined. Under Section 202, the procedure provided is:

'Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance ........ if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either 'inquiry' into the case himself or ........ direct 'an inquiry' ........ to be made by any Magistrate subordinate to him ..... .for the purposes of ascertaining the truth or falsehood of the complaint'.

(Note:-- The underlining (here in ' ') is mine).

If the Magistrate does not dismiss the complaint under Section 203, then process is issued under Chapter XVII the title of which reads: 'Of the commencement of Proceedings before Magistrate'.

8. After the process has been issued and the accused is called upon to appear in a case, such as the one before me, the provisions of Section 252 are attracted, which requires the Magistrate to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. On 23-1-1968, it was this stage at which the application under Section 540A was made. The proceedings before the Magistrate commenced as soon as he took cognizance of the offence and examined the complainant under Section 200 and his witnesses under Section 202 Cr. P. C. In fact the word 'inquire' has been used in the Section 202 itself. The complaint not having been dismissed under Section 203 Cr. P. C. the enquiry continued when the process was issued and the stage of hearing the complainant in the presence of the accused was reached. The stage was clearly one of 'inquiry' as understood in the Criminal Procedure Code and it would have continued right upto the time when charge was framed or the accused were discharged. The application under Section 540A could, therefore, be made at this stage. It is at any stage of an inquiry that an application under Section 540A could be made and the application was, therefore, not premature.

9. From the language of Section 540A as well, a similar conclusion is deducible. Prior to the amendment of Section 540A in 1955, it was provided that where two or more accused were before the court and if the Judge or Magistrate was satisfied for reasons to be recorded that any one or more of such accused was or were incapable of remaining before the Court, the Magistrate or the Judge could if such accused was represented by a pleader, dispense with his attendance and proceed with his inquiry or trial in his absence, From the amendment of Section 540-A it would appear that the legislature has introduced several changes and has imparted discernible liberality for theexercise of the discretion in dispensing with the presence of the accused. The amendment has relaxed the restrictions which existed in the earlier section. It is no longer necessary that there should be two or more accused in the case or that they should be present in Court before any one of them could apply for personal exemption. Further the ground for personal exemption is also not confined to incapacity to remain before the Court. The amendment, in my opinion, therefore, liberalised the circumstances in which exemption from personal attendance could be granted to an accused and it would be detracting from that liberality to argue that the accused must be himself present at the stage of Section 252 Cr. P. C. before an application could be moved. In some cases such a construction may frustrate the very object which the amendment aimed to attain.

10. In the case before me, as I have observed above, inquiry had commenced and it was not interrupted by the dismissal of the complaint and the stage of Section 252, Cr. P. C., in my opinion was certainly a stage of inquiry. In this view of the matter, the application made by the applicants was not premature. The application by their pleader, without the accused being personally present, was perfectly competent.

11. The next question which calls for consideration is whether the learned Magistrate was right in rejecting such an application. I have no hesitation in saying that the order of the learned Magistrate was entirely erroneous. 29 agriculturists of a famine-stricken area to travel 16 miles to attend the Court to answer a charge, on the merits of which I do not wish to express any opinion, was a hardship which ought to have been ameliorated rather than aggravated.

12. Accordingly I quash the order of the learned Magistrate dated the 23rd January, 1968, and the order of the learned Sessions Judge dated the 27th August, 1963, and grant personal exemption to the 29 applicants before me. They need not personally attend the Court of the learned Magistrate unless specifically required by the learned Magistrate, for reasons to be recorded by him, and they are permitted to appear through their pleader.


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