IN RE: UMMAL HASANATH Vs. STATE

JUDGEMENT

(1.) THIS case raises a point on which there is no direct authority. The petitioner is the first accused in P. R. C. No. 11 of 1947 in the Court of the Sub -Magistrate, Karur. She was arrested without a warrant by the police and remanded in a sub -jail for a period of 13 days. The offence was one under Section 302 of the Indian Penal Code. An application was made to the Magistrate, purporting to be under Section 205 of the Code of Criminal Procedure, to dispense with her personal attendance and to permit her to appear by her advocate. The grounds on which the application was made were that the petitioner was a purdah Muslim lady belonging to a respectable family and that she was a woman of poor health and frequently falling ill. The Sub -Magistrate rejected the application for two reasons : (i) that he had no jurisdiction to grant the application ; and (2) that the accused might be required for identification purposes. The petitioner seeks to have this order of the Magistrate revised by this Court.

(2.) THE second reason does not appear to be tenable. It has been represented to me that the petitioner is a gosha lady and that none of the witnesses is likely to have seen her personally. It has also to be mentioned that most of the witnesses have since been, examined and no necessity arose for identification ; but assuming that an occasion arose for identification it would always be open to the Magistrate to direct her personal attendance.

(3.) THE question then remains whether the Magistrate has the power to dispense with the persona] attendance of the accused under any other provisions of the Code. The learned advocate for the petitioner conceded that there was no other express provision. There is only a reference to exemption from personal attendance in. Section 353 of the Code of Criminal Procedure which runs as follows: