KALIDAS BANERJEE Vs. STATE

JUDGEMENT

(1.) These three Rules are directed against an order of Mr. J. Sarma Sarkar, Presidency Magistrate, Calcutta, dated May 29, 1954, refusing to exempt the Petitioners from appearing in court during their trial in the three cases concerned. The question to be determined concerns the extent of the court's jurisdiction under Section 540A of the Code of Criminal Procedure to dispense with the attendance of an accused when he is being tried with another or more accused persons.

(2.) It appears that by an order dated March 24, 1954 the learned Magistrate dispensed with the attendance in court of one of the Petitioners.. This order was subsequently vacated on the ground that the jurisdiction of the court to grant such exemption was, by Section 540A, limited to an accused's incapacity to remain before the court. By the last-mentioned order, which is complained of here, the learned Magistrate also discussed his powers under Sections 206 and 353 Code of Criminal Procedure to dispense with an accused's attendance in court.

(3.) Upon our construction of the words "incapable of remaining "before the Court" must depend the jurisdiction of the Magistrate to dispense with the attendance in court of an accused person. In our view, the words "incapable of "remaining" must refer to an accused's physical incapacity to remain before the court. That being so, no accused is entitled under Section 540A Code of Criminal Procedure to any exemption from appearance in court unless it is proved that he is physically incapable of remaining before the court. Having regard to the language used, it is impossible for us to give the words any other meaning. On the facts of this case, the Petitioners can be said to be only inconvenienced if their attendance is required in court. This is not a case of physical incapacity precluding the Petitioners' attendance in court.