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Chimanlal v. Parashar Singh
Factual and Procedural Background
This revision challenges the order dated 12-2-1955 by the Additional Sessions Judge, Balaghat, which refused to interfere with the Magistrate First Class, Waraseoni's order dated 18-10-1954 in Criminal Case No. 100 of 1954. The non-applicant No. 1 filed a complaint under section 500 of the Indian Penal Code. The accused applicants were summoned for hearings on 24-8-1954 and 30-9-1954, with the second applicant seeking exemption from personal attendance on grounds of business commitments. The Magistrate required personal attendance initially but later exempted the accused from personal attendance subject to conditions. The Additional Sessions Judge upheld the Magistrate's discretion to require personal attendance during the trial.
Legal Issues Presented
- Whether the Magistrate has the power to exempt the accused from personal attendance during trial under section 205(1) of the Criminal Procedure Code.
- Whether section 540A of the Criminal Procedure Code applies to cases where the accused is absent due to reasons other than physical incapacity.
- The scope of the inherent powers of the High Court under section 561A of the Criminal Procedure Code to exempt accused from personal attendance beyond the provisions of sections 205 and 540A.
Arguments of the Parties
Applicants' Arguments
- The summons and original order were issued under section 205(1) CrPC, which should allow the Magistrate discretion to exempt the accused from personal attendance.
- Applicant No. 1 argued he was busy with business at various places and could not attend personally.
- Applicant No. 2 contended that personal attendance on various dates would disrupt multiple companies' business and cause heavy expenses and harassment.
Respondent's Arguments
- Under section 205 CrPC, the Magistrate can dispense with personal attendance only when issuing summons, not during the trial.
- Section 540A CrPC applies only when the accused is physically incapable of attendance, which was not the case here.
- The Magistrate's order for personal attendance was within his discretion, possibly for identification purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Radha Raman, AIR 1930 All 817 | Section 540A CrPC allows dispensing with attendance only if accused is physically incapable of attending; no discretion for other grounds. | Court held that physical incapacity is the only valid ground under section 540A to dispense attendance; mere inconvenience is insufficient. |
| Kali Das Banerjee v. The State, AIR 1954 Cal 576 | Section 205 CrPC does not empower trial court to dispense with personal attendance during trial; relates only to exemption when summons issued. | Supported the view that section 205 does not allow exemption from attendance during trial; exemption must be granted at summons stage. |
| In re Ummal Hesanath, AIR 1947 Mad 433 | Disputed the scope of section 353 CrPC regarding dispensing attendance. | Court noted dissenting views but did not adopt dispensing attendance power under section 353 during trial. |
| Madhao Rao v. Iswardas Sheoratan, 50 Cri. L.J 932 : AIR 1949 Nag 334 | High Court's inherent power under section 561A CrPC to exempt accused from attendance beyond sections 205 and 540A when necessary to prevent abuse of process or secure justice. | Court exercised inherent jurisdiction under section 561A to exempt accused from personal attendance due to hardship and business inconvenience. |
Court's Reasoning and Analysis
The court analyzed the statutory provisions relevant to the accused's attendance during trial. It held that section 205 CrPC only permits exemption from personal attendance at the summons stage, not during trial. Section 540A CrPC applies solely where the accused is physically incapable of attending court, which was not the case here as the applicants' reasons were business-related inconvenience. The Additional Sessions Judge's view that personal attendance might be necessary for identification was acknowledged but not deemed conclusive. The court relied on precedents establishing that no discretion exists under these sections to exempt attendance for grounds of inconvenience. However, invoking the inherent powers under section 561A CrPC, the court found it appropriate to exempt the applicants from personal attendance to prevent hardship and harassment, permitting them to appear through counsel and obliging them to appear when specifically required by the Magistrate.
Holding and Implications
The revision is allowed.
The court exercised its inherent power under section 561A CrPC to exempt the applicants from personal attendance during trial due to their business commitments causing hardship and expense. This decision permits the applicants to be represented by a pleader, subject to producing themselves when the Magistrate deems necessary. The ruling directly affects the parties by relieving the accused of mandatory personal attendance on every hearing date but does not establish a new precedent altering the scope of sections 205 or 540A CrPC.
1. This revision is directed against the order dated 12-2-1955 passed by the Additional Sessions Judge, Balaghat, in Criminal Revision No. 89 of 1954 refusing to interfere with the order dated 18-10-1954 passed by the Magistrate First Class, Waraseoni, in Criminal Case No. 100 of 1954. The non-applicant No. 1 has filed a complaint under section 500 of the Indian Penal Code in the Court of the Magistrate First Class, Waraseoni. The two applicants, who are the accused in the criminal case, were ordered to be summoned for 24-8-1954. On that date, the applicant No. 2 appeared through Shri Khadilkar pleader, who applied for his exemption from personal appearance on the ground that he is busy in connection with his business. Applicant No. 1 was not served, and so a fresh summons was ordered to be issued to him. The case was fixed for 30-9-1954. On that date, the applicant No. 1 was served but was absent. He was represented by Shri Khadilkar, who made an application on his behalf also for exemption from personal attendance on the ground of dislocation of business and heavy expenses and harassment. The Magistrate of the trial Court passed the following order on 18-10-1954:
“Complainant with Shri Tiwari. Accused Natwarlal by Shri Khadilkar. Accused Chimanlal absent but served. Shri Khadilkar appears for him and requests the Court that he would furnish surety on the next hearing. The accused is released on a bail of Rs. 500/- with one surety in the like amount. He should execute the bail bond and furnish surety positively by the next hearing.
2. Shri Khadilkar makes an application for exemption of accused Chimanlal from personal attendance. Shri Tiwari raises no objection, except that on the date of evidence the accused must appear. I order that the accused must appear on the date of next hearing. There after he is personally exempted to appear subject to the discretion of the Court.
3. P.Ws be summoned P.F at once. Case for 22-11-1954.”
4. The Additional Sessions Judge was of the opinion that the only section which can be invoked for the purpose of the present case was section 540A of the Code of Criminal Procedure and although the Magistrate did not give the reasons why he required the personal attendance of the accused at the stage of recording evidence, the Additional Sessions Judge thought, that it might be for the sake of their identification. The Additional Sessions Judge refused to interfere with the order of the Magistrate as it was in the discretion of the trying Magistrate to direct the accused to remain present on any particular date of hearing.
5. It was contended on behalf of the applicants that the original order and the summons having been under section 205(1) of the Criminal Procedure Code, the trying Magistrate should have exercised his discretion in exempting the applicants from personal attendance. On behalf of the applicant No. 1, it is urged that he is busy with his business at various places, and on behalf of the applicant No. 2 it is urged that by having to appear on various dates the business of several companies would be dislocated and would involve heavy expenditure and harassment.
6. As against this, it was contended that under section 205 of the Code of Criminal Procedure, the Magistrate can dispense with the personal attendance of the accused only when he issues a summons and it does not confer upon him power to dispense with the attendance of the accused during his trial. It was also contended that the case did not fall within the ambit of Section 540A of the Criminal Procedure Code as it applies to cases where the accused remains absent due to physical incapacity. Several cases were cited at the Bar by the counsel in support of their contentions.
7. In Emperor v. Radha Raman, AIR 1930 All 817 (A) it has been held as follows:—
“Under S. 540 A the Court can dispense with the attendance of an accused person who is represented by a pleader and proceed with the trial in his absence only if the Court is satisfied that the accused is incapable of remaining before the Court. No discretion is given to dispense with the attendance of an accused upon any other ground.”
8. The same view was taken in Kali Das Banerjee v. The State AIR 1954 Cal 576 (B). As to the scope of S. 205 of the Code of Criminal Procedure, it was held in this case that the section does not confer upon a trial Court the power to dispense with the personal attendance of an accused during his trial. The section has reference to an exemption already granted by the Magistrate issuing summons.
9. The learned Judges in the above case dissenting from the view taken by Rajamannar J. (as he then was) in In re Ummal Hesanath AIR 1947 Mad 433 (C) held that S. 353 does not confer upon a Magistrate trying a case any power to dispense with the personal attendance of the accused during the trial. See also Madhao Rao v. Iswardas Sheoratan, 50 Cri. L.J 932 : (AIR 1949 Nag 334 (D)).
10. I am in respectful agreement with the view taken in Kali Das Banerjee v. The State, (B) (cit sup.) that the words “incapable of remaining” in S. 540 A refer to an accused's physical incapacity to remain before the Court. But where he is only inconvenienced if his attendance is required in Court it is not a case of physical incapacity precluding his attendance in Court. The provisions of S. 540 A of the Code of Criminal Procedure, therefore, do not apply in the instant case.
11. It has been held in Madhao Rao v. Ishwardas Sheoratan (D) (cit sup.) — a decision of the Division Bench of our High Court that where there is neither any specific provision of law nor any general principle of criminal jurisprudence which could conflict with the exercise of the inherent power, it can be exercised, if it is necessary to do so, by the High Court to give effect to any order under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The High Court has inherent powers under S. 561A to exempt an accused from appearance in Court beyond those contained in S. 205 and S. 540A.
12. In view of the reasons given by the applicants as stated in their applications, that they have extensive business in various places and it would involve them in heavy expenditure and would cause harassment if they are compelled to appear before the trial Court on each and every hearing. I, excuse the personal attendance of the applicants under S. 561A of the Criminal Procedure Code and permit, them to appear by a pleader.
13. There is hardly any ground that their presence would be needed for the purpose of identification as observed by the Additional Sessions Judge. Shri Dabir, who appears for them, undertakes to produce the applicants whenever the Magistrate would find it necessary. The revision is allowed.
K.S.B
14. Revision allowed.
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