MST SAVITRI Vs. L SHIV NATH

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge, Jammu in Criminal Revision No. 40 of 2010 filed before him against an order of the Sub-Judge Magistrate First Class, Jammu, rejecting an application of Mst. Savitri for exemption from personal attendance in a case under Sections 363 and 366, R. P. C. , in which she figured as one of the accused persons, on the ground that under Section 353, Cr. P. C. , the trial Magistrate had no power to grant such exemption. The learned Sessions Judge after examining the case, has held that the order of the trial Magistrate was wrong and that he had power under Section 353, Cr. P. C. , to exempt an accused person from personal attendance before him. He has, therefore recommended that the order of the trial Magistrate should be set aside and that Mst. Savitri should be exempted from personal attendance in Court subject to the condition that she should appear in Court on occasions when her presence is considered essential by the trial Magistrate.

(2.) WE have heard arguments in this case. The contention of the learned Counsel for the opposite party is that Section 353, Cr. P. C. , does not by itself empower the trial Magistrate to exempt an accused person from personal attendance in his Court. Section 353, Criminal P. C. is as follows:

(3.) AFTER careful consideration of the authorities referred to above we are inclined to subscribe to the view adopted by a large number of the Indian High Courts. As a matter of fact we find ourselves in complete agreement with the conclusion arrived at in the Allahabad Full Bench case referred to above and the reasoning on the basis of which that conclusion has been reached. We, therefore, hold that the trial Magistrate in this case had power to dispense with the personal attendance of the accused person. In this view we accept the recommendation made by the learned Sessions Judge and setting aside the order of the Sub-Judge Magistrate direct that Mst. Savitri be exempted from personal attendance in Court subject to the condition that she would appear in Court whenever the trial Magistrate considers her presence to be necessary.