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Gauhati High Court · body

1993 DIGILAW 74 (GAU)

Mahendra Debnath and Anothers v. Durjudhan Debnath

1993-03-29

M.SHARMA

body1993
Heard Mr. D. C. Sarma, learned counsel for the petitioners. 2. This revision has arisen from the order dated 10.4.92 passed by the Judicial Magistrate, First Class, Tinsukia in Case No. 177c of 1989 under sections 326/307/341 IPC, directing the petitioners to appear in person before the'Court cancelling the representation by Advocate. 3. The petitioners are the accused and they are facing trial in the . above mentioned case under the said sections. During the trial the petitioners filed an application for dispensing with the petitioner from appearance before the Court on the ground that both the petitioners are old, infirm and ailing persons and they have been under medical treatment and supervision since long and hence they could not appear before the Court in person and prays to allow them to be represented through their Advocate. But by order dated 7.9.90 the said petition was rejected by the trial Court and hence this revision before this Court. 4. By order dated 19.11.90 in Criminal Revision No. 412 of 1990 this Court directed the Judicial Magistrate to allow the petitioners to appear in the Court through their counsel with condition that the petitioners shall be require to appear before the Court during recording of evidence of prosecution side if the Magistrate considers necessary for the purpose of identification. 5. It is contended that the question of identification was never raised by the opposite party. In spite of High Court's order, the learned trial Court by the impugned order dated 10.4,92 directed the petitioners-to appear physically at the time of recording the evidence. 6. It appears that this Court by its order dated 19.11.90 allowed the revision petition putting the condition that 4f the trial Court considers necessary for the .purpose of identification, the petitioners can be directed to appear physically. Under section 317 CrPC, the trial Court considers necessary for the purpose of identification the petitioners can be directed to trial, if the Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court can be dispense with if the accused is represented by a pleader and Court can proceed with such trial in his absence, and may at any stage of the proceeding direct the personal attendance of such accused. The direction of the trial Court to make appearance physically is an interlocutory order and the-trial Court has jurisdiction to direct the accused peron to appear physically. In view of the .matter 1 find no illegality or infirmity in/the order (impugned) of the trial Court. 7. Learned counsel for the petitioner submits that the petitioners are old, infirm and ailing persons and they are suffering from old age ailments anil" prays direction to the trial Court for dispence with their appearance in the Court and that the petitioners are still suffering ailment and on that ground their appearance before the Court should be considered by the trial Courtl 8. In that view of the matter I direct the trial Court to consider the prayer of the petitioners and proceed accordingly. 9. With this observation and direction the petition is disposed of.