1. This is a reference made by the Sessions Judge, Jammu in Criminal Revision No. 40 of 2010 filed before him against an order of the Sub-Judge Magistrate First Class, Jammu, rejecting an application of Mst. Savitri for exemption from personal attendance in a case under Sections 363 and 366, R. P. C., in which she figured as one of the accused persons, on the ground that under Section 353, Cr. P. C., the trial Magistrate had no power to grant such exemption. The learned Sessions Judge after examining the case, has held that the order of the trial Magistrate was wrong and that he had power under Section 353, Cr. P. C., to exempt an accused person from personal attendance before him. He has, therefore recommended that the order of the trial Magistrate should be set aside and that Mst. Savitri should be exempted from personal attendance in Court subject to the condition that she should appear in Court on occasions when her presence is considered essential by the trial Magistrate.
2. We have heard arguments in this case. The contention of the learned Counsel for the opposite party is that Section 353, Cr. P. C., does not by itself empower the trial Magistrate to exempt an accused person from personal attendance in his Court. Section 353, Criminal P. C. is as follows:
Except as otherwise expressly provided, all evidence taken under Chapters XVIII. XX, XXI, XXII and XXIII shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.
It is urged that the words 'when his personal attendance is dispensed with' in this section merely state a fact and do not by themselves authorise the Court to grant exemption to an accused person from personal attendance.
It is stressed that the power to grant exemption from personal attendance by a trial Magistrate has been expressly given in the different provisions of the Code of Criminal Procedure, e.g., Section 205 or Section 540-A. Section 205, Cr. P. C. empowers a Magistrate at the time of issuing a summons, if he sees reasons to do so, to dispense with the personal attendance of the accused and to permit him to appear by his pleader. It is obvious-that this power cannot be used in a case in which a warrant has been issued by the Magistrate in the first instance as has been done in the present case. Under Section 540-A at any stage of an inquiry or trial under the Code, where two or more accused are before the Court, the Judge or Magistrate on being satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, may . dispense with the attendance of such an accused person or persons and proceed with such inquiry or trial in his or their absence.
The learned Counsel for the opposite party, however admits that the High Court has power under Section 561-A, Cr. P. C. to grant exemption to an accused person from personal attendance during his trial.
In support of the view that Section 353, Cr. P. C. does not by itself empower a trial Court to dispense with the personal attendance of an accused person reliance is placed on - 'Madho Rao v. Iswardas Sheoratan' AIR 1949 Nag 334 (A). In that case the learned Judges referred to a string of cases decided by the different Indian High Courts in which it had been held that Section 353, Cr. P. C., 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. It is then added:
We have considered the wording of Section 353 very carefully and say 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 on Courts to dispense with personal attendance of the accused.
'AIR 1949 Nag 334 (A)', however, was considered by a Full Bench of the Allahabad High Court in - 'Sultan Singh v. State' : AIR1951All864 and after considering the time honoured practice of the Courts and a large number of the decided cases on the point their Lordships of the Allahabad High Court recorded their dissent from the view expressed in - 'AIR 1949 Nag 334 (A)'. It was held:
The reference in Section 353, to the power of a trial Court to dispense with the personal attendance of an accused, therefore, clearly implies that the trial Court has such a power of granting exemption.
It was pointed out in the Pull Bench Judgment that up to the year 1923 Section 205 and Section 353 were the only provisions in the Code relating to exemptions from personal attendance of accused persons and that Section 540-A was added to the Code in the year 1923. It was then observed:
It could not be seriously urged that before Section 540-A was enacted the trial Courts had no power to exempt an accused person from personal attendance unless at the first instance when the summons was issued under Section 204, the Magistrate had under Section 205, provided for his presence by pleader and had not insisted on his attendance in person. Questions must have arisen in a large number of cases about exempting accused persons from personal attendance in Court and no case has been cited in which it was held that the trial Court had no such power even if there were good grounds for exemption..but the facts remains that the Courts, before the amendment of the Code in 1923, were exercising the power of granting exemptions in proper cases from personal attendance by accused persons.
Section 540-A was enacted only to meet a special type of case and under certain special circumstances, but so far as we can see, it was not intended that the power that the Courts were already exercising of granting exemptions in proper cases was intended to be taken away and restricted to the provisions of Section 540-A only.
The same view was taken in an earlier Madras case reported as------'In re Ummal Hesanath' AIR 1947 Mad 433 (C) by the present Chief Justice of that Court. It was laid down in that case:
I am inclined to take the view that Section 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. Chapter XVIII would cover an enquiry before the Committing Magistrate also. There appears to be a difference between the stage contemplated by Section 205 and that contemplated by Section 353. Section 205 deals with the initial appearance of the accused person before the Magistrate whereas Section 353 deals with the presence of the accused during the trial of the case or during enquiry. I therefore hold that the Magistrate had the power to entertain the application of the petitioner.
These two cases have also been followed in a recent case decided by the Assam High Court reported as - 'Mt. Kamal Debi v. Pannalal' AIR 1952 Assam 151 (D).
3. After careful consideration of the authorities referred to above we are inclined to subscribe to the view adopted by a large number of the Indian High Courts. As a matter of fact we find ourselves in complete agreement with the conclusion arrived at in the Allahabad Full Bench case referred to above and the reasoning on the basis of which that conclusion has been reached. We, therefore, hold that the trial Magistrate in this case had power to dispense with the personal attendance of the accused person.
In this view we accept the recommendation made by the learned Sessions Judge and setting aside the order of the Sub-Judge Magistrate direct that Mst. Savitri be exempted from personal attendance in Court subject to the condition that she would appear in Court whenever the trial Magistrate considers her presence to be necessary.