Anand Martand v. Anant Pandurang — 1955 DIGILAW 59 (MP)

ORDER : SAMVATSAR, J. 1. One Anant Pandurang Vaidya filed a criminal complaint against the petitioners (1) Anant son of Martand and (2) Vasant son of Martand, in the Court of Sub-Divisional Magistrate, 2nd Class, Dhar under S. 472/448, 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. 2. The accused appear to be 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 under S. 540-A, Criminal P.C., 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. 3. 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 under S. 438, Criminal P.C. 4. 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 under S. 561-A and that this was a fit case for exercising that power. 5. 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 under S. 363, Criminal P.C. 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 case where warrant is issued in the first instance. The learned Judge has preferred to follow the view expressed in- 'Sultansingh v. State', AIR 1951 All 864 (FB) (A), which is in accord with the view of the majority of the High Courts in India and is directly based on the decision of the Madras High Court in- In re, Ummal Hesaimth', AIR 1947 Mad 433 (B). 6. The Allahabad view is in conflict with the opinion expressed by the Nagpur High Court in- 'Madhorao v. Ishwardas Sheoratan', AIR 1949 Nag 334 (C) and that of the Calcutta High Court in- Kalidas Banerjee v. State', AIR 1954 Cal 576 (D). The High Court of East Punjab has also not agreed with the Madras view in- Indra Devi v. Samagat Singh', Cri. Misc. Petn. No. 344 of 1948. 7. In AIR 1947 Mad 433 (B), Rajamannar, J. has held that S. 353, Criminal P.C. by necessary implications 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 the accused person. According to the learned Judge there is a difference between the stages contemplated by S. 205, Criminal P. C and S. 353, Criminal P.C. Section 205 deals with the initial appearance of the accused person before a Magistrate whereas S. 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 decision 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). 8. A Full Bench of the High Court of Allahabad in AIR 1951 All 864 (A), adopted the Madras and Bombay view. 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). 8. A Full Bench of the High Court of Allahabad in AIR 1951 All 864 (A), 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 S. 540-A it must be assumed that the provisions of S. 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 by observing that S. 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 S. 205 to enable the Court to dispense with the attendance of the accused in cases 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 S. 353, Criminal P.C. According to the learned Judges, S. 353 conferred implied powers on the trial Court to dispense with the personal attendance of the accused. 9. The Allahabad view has subsequently been followed by a Division Bench of the Assam High Court in- 'Mt. Kamal Debi v. Pannalal', AIR 1952 Assam 151 (G), and the High Court of Jammu and Kashmir in- 'Mt. Savitri v. Shiv Nath', AIR 1954 J and K 40 (H). 10. A contrary view was, however, taken by a Division Bench of the High Court of Nagpur in AIR 1949 Nag 334 (C). In that case the learned Judges examined the relevant provisions of the Criminal Procedure Code dealing with the powers of the Court to exempt personal attendance of the accused and held that S. 353, Criminal P.C. docs 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. 11. According to the learned Judges them conditions under which exemption could be granted arc not mentioned in S. 353 and it cannot therefore be argued that this confers power on the Court to exempt an accused person from personal appearance. 11. According to the learned Judges them conditions under which exemption could be granted arc not mentioned in S. 353 and it cannot therefore be argued that this confers power on the Court to exempt an accused person from personal appearance. They then referred to S. 561-A and held that the exercise of the inherent powers under that Section itself depended upon interpretation of S. 353, Criminal P.C. If that Section was held not to confer powers on the Court to exempt an accused person from personal appearance, it would be open to the Court to do so under S. 561-A. 12. The view taken by the Nagpur High Court has been supported by a recent decision of the Calcutta High Court in AIR 1954 Cal 576 (D), and the Division Bench of that High Court has adopted a line of reasoning similar to that of the Nagpur High Court. 13. The High Court of East Punjab has also not agreed with the Madras view in Cri. Misc. Petn. No. 344 of 1948. (E). 14. The position in this Court is also somewhat in an anomalous condition. In- 'Rajkumarsingh v. State', AIR 1951 Madh-B 28 (I), Mehta, J. felt doubtful about the use of S. 353, Criminal P.C. in dispensing with the personal attendance of the accused person but granted exemption under S. 561-A, Criminal P.C. 15. In- 'Tarabai v. State', Cri. revn. 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 S. 353, Criminal P.C. 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 fall under any of the provisions of the Criminal Procedure Code. 16. 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. 17. 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. 17. I therefore refer the following point to a Division Bench under S. 29, High Court of Judicature Act : "Whether in a case where warrant is issued to the accused person in the first instance, S. 353, Criminal P.C. 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 ?" 18. 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. 19. SHINDE, C. J. :- This is a reference under 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, S. 353, Criminal P.C. 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 Madh-B 28 (1), Mehta, J. expressed the view that it is doubtful whether exemption from personal attendance can be granted under S. 353, Criminal P.C. While Dixit, J., in 'Tarabai v. State of Madhya Bharat (J), held that exemption can be granted under S. 353, Criminal P.C. 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. 20. 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 that S. 353, Criminal P.C. by necessity 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 AIR 1947 Mad 433 (D); AIR 1951 All 864 (FB) (A); AIR 1952 Assam 151 (G);-- 'Kewal Krishan v. State', AIR 1954 Pepsi 36 (K); AIR 1954 J and K 40 (H). On the contrary Nagpur, Calcutta and Punjab have taken the view that apart from Ss. 205, 540-A and 561A, Criminal P.C., the Courts have no powers to grant exemption from personal attendance (Vide AIR 1949 Nag 334 (C);- 'Harkrishan Dass v. Kirpal Shah', (S) AIR 1955 Punjab 181 (L); AIR 1954 Cal 576 (D)). 21. Section 353, Criminal P.C. reads as follows : "Except as otherwise expressly provided, all evidence taken under Chaps. 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 Chaps, 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 S. 512, Criminal P.C. This is the only provision in the Criminal Procedure Code 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 S. 205 and the second is S. 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 under S. 204, Criminal P.C. 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 Criminal Procedure Code 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 S. 540-A was introduced in the Criminal Procedure Code. There is no other Section which specifically allows the Court to dispense with the attendance of the accused. 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 S. 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 Chaps. 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 warrant 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 warrant 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 S. 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 indicate that apart from S. 205 Courts do possess power to grant exemption to the accused from personal attendance. Section 540-A empowers the Court to grant exempt on only under certain circumstances specified in the Section. But the general power to grant exemption implicit in S. 353 has not been taken away by S. 540-A. S. 540-A has been incorporated in the Criminal Procedure Code only to meet certain contingencies. Section 353 has been in existence long before. S. 54D-A was introduced in the Criminal Procedure Code. By implication therefore S. 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. 433 (B) and by the Fall Bench in AIR 1951 All 864 (A). 22. The question referred to is accordingly answered in the affirmative. 23. 433 (B) and by the Fall Bench in AIR 1951 All 864 (A). 22. The question referred to is accordingly answered in the affirmative. 23. SAMVATSAR, J. :- I agree. Reference answered affirmatively.