Anand Martand and Another vs Anant Pandurang

Samvatsar, J.—One Anant Pandurang Vaidya filed a criminal complaint against the Petitioners (1) Anant son of Martand and (2) Vasaut son of Martand, in the Court of Sub-Divisional Magistrate, 2nd Class, Dhar u/s 478/448, I.P.C. The learned Magistrate took cognizance of the offence and issued a bailable warrant for Rs. 200/- to secure the attendance of the accused.

The accused appear to he residents of Poona. On process being served they applied through their pleader Mr. Chandmal Gupta for exemption from personal attendance. Anant was ill and exemption was granted to him u/s 540A, Code of Criminal Procedure, during the period of his illness but the prayer to exempt Vasant was rejected by the learned Magistrate by his order dated 29-12-1953.

The Petitioners preferred a revision application to the Sessions Judge, Dhar. The learned Judge being of the opinion that the prayer of the Petitioners deserved to be granted, has referred the case to this Court u/s 438, Code of Criminal Procedure .

It was conceded by Mr. Pradhan, the learned Advocate for the complainant Anant Pandurang Vaidya, that it was a fit case for granting exemption from personal attendance to the accused as otherwise they would have to go from Poona to Dhar on every date of hearing. The accused are also not charged with the commission of a very serious offence which would require their personal presence in Court. Both the Counsel agreed that the High Court had power to grant the prayer of the Petitioners u/s 561-A and that this was a fit ease for exorcising that power.

The learned Sessions Judge, Dhar is of the opinion that the trial Court itself had the power to grant prayer of the accused for exemption from personal attendance u/s 363, Code of Criminal Procedure The learned Judge had referred to the divergence of opinion that has prevailed amongst the High Courts in India as regards the power of the Court to exempt an accused person from attendance in a ease where warrant is issued in the first instance, The learned Judge has preferred to follow the view expressed in - Sultan Singh Jain Vs. The State, which is in accord with the view of I ho majority of the High Courts in India and is directly based on the decision of the Madras High Court in - In re, Ummal Hesanath AIR 1947 Mad 488 (B).

The Allahabad view is in conflict with the opinion expressed by the Nagpur High Court in AIR 1949 334 (Nagpur) and that of the Calcutta High Court in - Kali Das Banerjee and Another Vs. The State, The High Court of East Punjab has also not agreed with the Madras view in - Indra Devi v. Sarnagat Singh Cri. Misc. Petn. No. 344 of 1948.

In In Re: Ummal Hasanath, Rajamannar J. has hold that Section 353, Code of Criminal Procedure by necessary implications confers powers on tire 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 the accused person. According to the learned Judge there is a difference between the stages contemplated by Section 205, Code of Criminal Procedure and Section 353, Code of Criminal Procedure Section 205 deals with the initial appearance of the accused person before a Magistrate whereas Section 353 deals with the presence of the accused during the trial of the case or during inquiry.

This was a case in which exemption was applied for by the accused who was an old and ailing Muslim lady and was being tried on the charge of murder. The Magistrate to whom the application for exemption was presented in the first instance had refused the prayer amongst other grounds on the ground that he had no power'' to do so. The High Court reversed the (Incision and granted exemption to the accused. The learned Judge of the Madras High Court had relied on the decision of the Bombay High Court in - ''Emperor v. C.W. King'' 14 Bom LR 236 (F).

A Full Bench of the High Court of Allahabad in Sultan Singh Jain Vs. The State, adopted the Madras and Bombay view. It was argued in that case before the Full Bench that in view of the specific provision contained in Section 540-A it must be assumed that the provisions of Section 353 were not intended to confer power on the Court to dispense with the attendance of the accused during the trial or the inquiry.

The learned Judges met this argument he observing that Section 540A was intended to deal with specific cases and not to take away the power already vested in Court. They held that there is no specific provision in the Code excepting Section 205 to enable the Court to dispense with the attendance of the accused in ewes where warrant is issued in the first instance but went on to hold that such power was implied by reason of the provisions contained in Section 353, Code of Criminal Procedure According to the learned Judges, Section 353 conferred implied powers on the trial Court to dispense with the personal attendance of the accused.

The Allahabad view has subsequently been followed by a Division Bench of the Assam High Court in - Mt. Kamal Debi and Others Vs. Pannalal Agarwalla, and the High Court of Jammu and Kashmir in - Mt. Savitri v. Shiv Nath AIR 1954 J&K 40 (II).

A contrary view was, however, taken by a Division Bench of the High Court of Nagpur in AIR 1049 Nag 334 (C). In that case the learned Judges examined the relevant provisions of the Code of Criminal Procedure dealing with the powers of the Court to exempt personal attendance of the accused and hold that Section 353, Code of Criminal Procedure doc not by necessary implications confer power on the presiding officer, whether he is a Magistrate or Sessions Judge or a Judge of the High Court to dispense with personal attendance of the accused person.

According to the learned Judges the conditions under which exemption could ho granted are not mentioned in Section 353 and it cannot therefore ho argued that this confers power on the Court to exempt an accused person from personal appearance. They then referred to Section 561-Aand held that the exercise of the inherent powers under that section itself depended upon interpretation of Section 353, Code of Criminal Procedure If that section was held Hot to confer powers on the Court to exempt an accused person from personal appearance, it would be open to the Court to do so u/s 561-A.

The view taken by the Nagpur High Court has been supported by a recent decision of the Calcutta High Court in Kali Das Banerjee and Another Vs. The State, and the Division Bench of that High Court has adopted a line of reasoning similar to that of the Nagpur High Court.

The High Court, of East Punjab has also not agreed with the Madras view in Criminal Misc. Petn. No. 341 of 1948.(E).

The position in this Court is also somewhat in an anomalous condition. In Rajkumar singh v. State AIR 1951 Mad 28 (1), Mehta J. felt doubtful about the use of Section 353, Code of Criminal Procedure in dispensing with the personal attendance of the accused person but granted exemption u/s 561A, Code of Criminal Procedure .

In - Tarulmi v. State Criminal Revision No. 71 of 1954, D/- 3-8-1954 (Madh-B), Dixit J. preferred to follow the Madras view and held that the relevant provision under which exemption could be granted to the accused person in a case where warrant is issued in the first instance is Section 353, Code of Criminal Procedure and that section conferred implied powers on the Court in allowing evidence to be recorded in the absence of the accused in cases which do not fail under any of the provisions of the Code of Criminal Procedure.

There is thus not only a conflict of opinion amongst the other High Courts in India but the learned Judges of this High Court also do not appear to have held uniform views on the subject. The matter is one of some public importance and it is necessary for the guidance of the lower Courts that there should be an authoritative pronouncement by a Division Bench of this High Court.

I therefore refer the following point to a Division Bench u/s 29, High Court of Judicature Act:

Whether in a ease where warrant is issued to the accused person in the first instance, Section 353, Code of Criminal Procedure empowers the presiding officer of the Court, whether he is a Magistrate, a Sessions Judge or a Judge of the High Court, to dispense with the personal attendance of the accused?

The case may therefore be submitted to the Hon''ble the Chief Justice for nominating a Division Bench to hear and dispose of this question.

Shinde, C.J.

This is a reference u/s 29, High Court of judicature Act. The point referred to this Bench is as follows:

Whether in a case where warrant is issued to the accused in the first instance, Section 353, Code of Criminal Procedure empowers the presiding officer of the Court, Whether he is a Magistrate, a Sessions Judge or a Judge of the High Court, to dispense with the personal attendance of the accused.

In AIR 1951 Mad 28 (I), Mehta J. expressed the view that it is doubtful whether exemption from personal attendance can be granted u/s 353, Code of Criminal Procedure While Dixit J., in Tarabai v. State of Madhya Bharat(J), held that exemption can be granted u/s 353, Code of Criminal Procedure. Thus as there was a conflict of opinion between the two learned Judges of this Court and as there was no authoritative decision of this Court, the learned Single Judge has referred this question to this Bench.

On this point there is a conflict of opinion between the High Courts in India. Madras, Allahabad, Jammu-Kashmir, Assam. Pepsu and Mysore have taken the view trial Section 353, Code of Criminal Procedure by necessary implication confers powers 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: Vide In Re: Ummal Hasanath, ; AIR 1951 All 884 (FB) (A); AIR 1952 Gau 151 (G); - Kewal Krishan v. State AIR 1954 Pep 36 (K) : AIR 1954 J&K 40 (H). On the contrary Nagpur, Calcutta and Punjab have taken the view that apart from Sections 205, 540-A and 561A, Code of Criminal Procedure, the Courts have no powers to grant exemption from personal attendance (Vide AIR 1949 334 (Nagpur) ; - Harkrishan Dass v. Kirpal Shah (S) AIR 1955 P&Hb 181 : AIR 1954 Cal 570(D).

Section 353, Code of Criminal Procedure road. 1, as follows:

Except as otherwise expressly provided, all evidence taken under Chapter 18, 20, 21, 22, and 23 shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.

The language of this section enjoins the Court to record all evidence under Chapter 18, 20, 22 and 23 in the presence of the accused except under two conditions. The first condition is that there should be an express provision to the contrary; and the second condition is that the accused is exempted from personal attendance. When either of these conditions is present, evidence need not be recorded in the presence of the accused.

The express provision to the contrary is Section 512, Code of Criminal Procedure This is the only provision in the Code of Criminal Procedure which empowers the Court to record the evidence in the absence of the accused. The second condition refers to the exemption of the accused from personal attendance. There are only two sections which specifically refer to the powers of the Court to grant exemption from personal attendance. One is Section 205 and the second is Section 540-A. Section 205 empowers a Magistrate, whether he is holding an enquiry or a trial to exempt the accused from personal attendance provided he issues a summons u/s 204. Code of Criminal Procedure .

The scope of 205 therefore is limited to those cases in which a Magistrate issues a summons in the first instance. Section 540-A was incorporated in the Code of Criminal Procedure by the Amendment Act 18 of 1923. This section enables the Court to dispense with the personal attendance of the accused provided there are more than one accused in the case and the accused is incapable of remaining before the Court, Section 353, however was in existence long before Section 540-A was introduced in the Code of Criminal Procedure. There is no other section which specifically allows the Court to dispense with the attendance of the accused. Section 205, as already stated, is confined only to those cases in which a Magistrate issues summons in the first instance But Section 353 is not confined only to those cases in which summons is issued in the first instance.

It allows the Court to record evidence in the absence of the accused, under Chapter 18, 20, 21, 22 and 23. Chapter 18 refers to an enquiry into a case triable by a Court of Session or High Court. This Chapter includes all the cases irrespective of whether summons has been issued in the first instance or wanrrant has been issued in the first instance. It also includes those cases in which the accused is produced before the Magistrate. Chapter 21 refers to the trial of wanrrant cases by a Magistrate. Now this Chapter also includes cases in which warrant might have been issued in the first instance. Chapter 23 refers to the trials before High Courts and Courts of Session.

Section 205 admittedly does not apply to trials before the High Court or the Court of Session; and yet Section 353 allows the evidence to be recorded in the trials in the absence of the accused on the ground that his personal attendance is dispensed with. This clearly indicates that apart from Section 205 Courts do possess power to grant exemption to the accused from personal attendance. Section 540-A Empowers the Court'' to grant exemption only under certain circumstances specified in the section. But the general power to grant exemption implicit in Section 353 has not been taken away by Section 540-A. Section 540-A has been incorporated in the Code of Criminal Procedure only to meet certain contingences. Section 353 has been in existence long before Section 540-A was introduced in the Code of Criminal Procedure 353 empowers a presiding officer whether he be a Magistrate, a Sessions Judge or a Judge of the High Court to dispense with the personal attendance of the accused. In this view of the matter I respectfully agree with the view taken by Rajamannar J. (as he was then) in AIR 1947 Mad 488 (B) and by the Full Bench in Sultan Singh Jain Vs. The State, .

The question reffered to is accordingly answered in the affirmative.

Samvatsar, J.

I agree.