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Judgment
6 paragraphs · 386 wordsKhan J
The facts giving rise to this reference are that a complaint was filed u/s 323 Indian Penal Code against Gulab Chand and Ajudhi and their wives Mst. Chhabki and Mst. Sarjo respectively. A summons was issued to the two Mahilas (Mst. Chhabko and Mst Sarjo) and in reply they appointed counsel on their behalf and filed an application before the trial court u/s 205 and Sec. 540-A of the Criminal Procedure Code for being exempted from personal attendance in the Court. They alleged that they belonged to a respectable Vaishya family and according to the custom and practice of their community, they do not go out. The trial Court without considering the facts, dismissed the application on the ground that they were physically capable of coming to the Court. A revision was filed before the Sessions Judge, Gwalior, against the order, and, the learned Sessions Judge has recommended that the two Mahilas should be exempted.
The order was passed by the Magistrate on 21-3-57 and much before it, Section 540-A of the Criminal Procedure Code came into force. Unfortunately before passing the order, the learned Magistrate did not look it up. The new Section 540-A Cr.P Code reads as follows:--
(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.
This section gives very wide powers to the Magistrate to dispense with the personal attendance of the accused, According to this section, what the Magistrate has to determine is whether it is necessary for the accused to be present in the Court. The question whether the accused is physically incapable of remaining before the court is of no consequence.
For reasons stated above I accept the reference and, set aside the order of the Magistrate and exempt the two accused (Mst. Chhabko and Mst. Sarjo) for their personal attendance in the Court of the Magistrate.