MUNSHI IQBAL HUSSAIN Vs. STATE

JUDGEMENT

(1.) THIS is an application by the complainant, Iqbal Hussain, in a case under secs. 147, 379 and 325 of the Indian Penal Code, which has been challaned in the Court of Extra Magistrate, Chirawa at Jhunjhunu, against Fateh Mohammad Shah and others. Fateh Mohammad Shah made an application before the Magistrate that he be exempted from personal attendance under sec. 205 of the Code of Criminal Procedure, because he was a Shajjadanashin, and had a lot of disciples, and was an old man of 60. The learned Magistrate exempted him from personal appearance on both the grounds of respectability as well as age. Against this order, the applicant Iqbal Hussain went in revision to the Court of Session at Jhunjhunu. The learned Sessions Judge held that sec. 205 Cr. P. C. was not applicable, but dismissed the application for revision on the ground that exemption could be given under sec. 353 Cr. P. C. The complainant has now come to this Court in revision.

(2.) IT was argued by the learned counsel for the applicant that sec. 205 Cr. P. C. was not applicable according to the view of the learned Sessions Judge himself. He argued that sec. 353 Cr. P. C. too was not applicable as what it lays down is that all evidence taken under Chapters XVIII, XX, XXII, and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader. IT does not authorise the court to exempt an accused from personal appearance. He further argued that although in the Sessions judgment no reference is made to sec. 540 A, yet even that section was not applicable, as it applied when any one or more of several accused is, or are incapable of remaining before the court. He proceeded to argue that even the residuary sec. 561 A, which confers inherent power on he High Court was not applicable. The accused Fateh Mohammad Shah could not, therefore, be legally exempted from personal appearance in court. He also argued that the grounds on which exemption was given were also not sound. The fact that an accused was a respectable man or a religious head would not by itself entitle an accused to exemption from personal appearance in a criminal case For this he relied on Art. 14 of the Constitution of India. As regards old age, he argued that first of all there was controversy as to the age of the accused, but even if it be assumed that he was 60 years old, that fact alone was not sufficient for giving him exemption.