This is a reference under section 438 read with section 435 of the Code of Criminal Procedure made by the learned Second. Additional Sessions Judge, Karachi dated 13-9-1971 recom--mending that the order passed by the learned A. C. M. No. 21, Karachi, dated 7-5-1970 granting exemption to two of the accused fin a criminal case pending before the learned Magistrate from appearance during the trial be set aside as the same is an illegal and improper order.
2. The relevant facts briefly are these: Victor Henry lodged a direct complaint on 3-2-1970 in the Court of the above--mentioned Magistrate against four accused persons, namely. Michael John, Adwin Wheeler, Anne John and Josepbine Saeeda under sections 325, 452 and 504 read with section 34, P. P. C. The learned Magistrate took cognizance of the case and issued process in it by way of warrants for the appearance of the accused shown in the complaint for their trial. There-- after, on behalf of the two accused who are ladies, I e. Anne John and Josephine Saeeda an application was moved under section 540-A, Cr. P. C. For their exemption from appearance during the course of the trial and the grounds in support of that application were the following :-
(i) That they are women and have a statutory right of lenient view as regards bail and appearance in Court ;
(ii) though the lady accused do not observe pardah but they do not appear in public frequently ;
(iii) that because of domestic responsibilities and other allied works, they are unable of remaining before the Court.
3. On this application the learned trying Magistrate passed the following short order :- "The complaint in this case was filed on 3-2-1970 since then about 10 hearings have taken place and not a single witness has been examined by the complainant since registration of the case. In view of the manifest reluctance of the complainant to put on his case I feel inclined to grant exemption to the two lady accused, namely, (1) Mrs. Anue John (2) Mrs. Josephine from personal appearance and direct that they be represented by their Advocate Mr. Arshad A.I Khan. The Advocate on behalf of the complainant is advised to proceed with the case expeditiously."
This order was challenged by the complainant Victor Henry, who filed a revision application under section 435 read with section 438, Cr. P. C. Before the Court of Session and the same was decided by the learned Second Additional Sessions Judge, Karachi, mentioned already above, recommending that the exemption order of the two accused in the case from appearing before the trial Court be set aside. The learned Additional Sessions Judge, in his reasons in this order stated that in the first instance as bailable warrants were issued against the two concerned accused section 205, Cr. P. C. Was not attracted to the case; that the said two accused were not pardanashin ladies; that no authority was shown under which the exemption under section 540-A, Cr. P. C. Could be claimed for particular hearing only; that although the ground was advanced that because of domestic responsibility and other allied works the said two accused were not pardanashin ladies but that an Advocate was willing to appear for them was not considered as a ground in support of the impugned order; and he put forward, as the last ground that the complainant was delaying the proceedings of the case was not a proper and legal ground for exemption under section 540-A, Cr. P. C.
4. It will be seen from the impugned order of the learned Magistrate that he has granted exemption to the two lady accused aforesaid only because the complainant, according to the Magistrate, had purposely delayed the progress of his case for about 10 hearings when not a single witness was examined and, therefore, according to the Magistrate, there was manifest reluctance on the part of the complainant to put up his case as such he granted the exemption. The learned Magistrate has not quoted the section under which he passed this exemption order which is impugned. In the Code of Criminal 'Procedure there are three sections which deal with the power of the Courts to grant exemption for appearance to accused persons during enquiries and trials. The first of them in section 205, Cr. P. C. Which lays down that whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader; the second provision is under section 353, Cr. P. C. Which is regarding the recording of all evidence to be taken during enquiries and trials which is laid down to be necessarily taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader: and the third provision is section 540-A, Cr. P. C. Relevant portion of which is as follows "540-A.-At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons. To be recorded, that anyone or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused."
5. It will be seen from the above-quoted section 540-A, Cr. P. C. That exemption can be granted by a Judge or Magistrate for reasons to be recorded when the accused is incapaale of remaining before the Court. This section, therefore, obviously has not been taken into consideration properly by the learned trying Magistrate who passed the impugned order as he doe not advance this reason in support of his order but has merely said that because the complainant is protracting the case, therefore, he granted exemption from appearance to the two lady accused. In my opinion, the learned Magistrate even on any of the grounds mentioned In the application for exemption could not invoke the provisions of section 540-A, Cr. P. C. Because there is no reason in that application for exemption showing that the two lady accused are incapable of remaining before the Court merely because they had been shown to have domestic respon--sibilities and allied work which was not a sufficient reason to cover their case within the expression "incapable of retraining before the Court", as mentioned in section 540-A, Cr. P. C. Besides, the learned Magistrate himself also does riot say that he has passed the order impugned under this section. The other section is section 205 of the Code of Criminal Procedure which empowers a Magistrate to grant exemption from appearance to tin accused person when in the case summons have been issued by him as a process for the appearance of the accused persons. This section also would not help the sustainability of the impugned order because in the instant case bailable warrants had been issued against all the accused in the case, including the two lady accused who have been granted exemption under question. The third section i.e. Section 353, Cr. P. C. Has also not been pressed into service by the learned Magistrate which he could well do for dispensing with the personal attendance of the accused concerned but since he has not mentioned this section in his order it cannot be said that he has exercised his powers dispensing with the presence of the two lady accused in question under this section. I like to make it clear that section 540-A, Cr. P. C. Is mainly for the purpose of dispensing with the personal attendance of one or more accused when such an accused is or are incapable of remaining before the Court i.e., for instance when they are ill or due to some other reason beyond their control they cannot attend at the hearing of the case. This section also shows that exemption to be granted under it is to be for the purpose of dispensing with the appearance of the accused only for some short time generally and not during the whole course of trial or enquiry. Obviously, therefore, the application made by the accused persons in this case under section 540-A, Cr. P. C. Was not maintainable as being incompetent because this section could not be invoked by them under the circumstances of this case.
6. The law is also well settled that when a Magistrate grants exemption from appearance to an accused person under section 205, Cr. P. C. In a case where warrants have been Issued as a process against the accused, the Magistrate can convert the warrants into summons and then proceed to apply the provisions of section 205, Cr. P. C. And give exemption to the accused person from appearance at the trial or enquiry before him. I am supported in this view by the case of Crown v. Mahomed Kadu and others (3SLR167where it has been observed by their Lordships as under :- "Where a Magistrate had issued bailable warrants against accused without holding any preliminary inquiry in the matter, and three of the accused, who were females, applied to him to cancel the warrants, substituting for them summonses and. Exempting the applicants from personal appearance, alleging that they were pardanashin ladies and that the com--plainant had preferred a false complaint against them only in order to harass and disgrace them, it was held that it was a fit case for substituting summonses for warrants and exempting the accused from personal appearance under section 205, Criminal Procedure Code."
It has become a general practice of Courts by now that in cases where accused are pardanashin women their personal appearance at the hearings is dispensed with and they are allowed to appear by a pleader until such time when their attendance becomes necessary. But such an order need not refused merely because a lady accused is not a pardanashin woman, as this is not a condition laid down under section 205, Cr. P. C. Under this section in the commentary fn the Code of Criminal Procedure by V. V. Chitaley (5th Edition (1956) It ham been observed at page 1038 as under : - "The Court will extend the privilege of pardah to women who, though not strictly observing pardah, are yet not accustomed generally to appear before the public."
Then two reported cases are cited in the foot-note of that case and the Sind authority relied upon is AIR 1931 Sind 37 (38).
7. The impugned order of the learned Magistrate further, in my opinion, also does not appear to be proper and legal, strictly speaking so, merely because the ground of protraction of trial by the complainant which has been relied upon is not a sufficient ground, in my opinion, to attract even the provisions of section 205, Cr. P. C. What the learned Magistrate should have done was either he should have cancelled the bailable warrants against the two lady accused in this case and thereafter proceeded to grant exemption to them if he found reasons so to do as required by this section, or he should have acted on his powers under section 353, Cr. P. C. In which case it was immaterial even if the accused persons who were being considered for granting exemption from appearance were originally summoned to the Court through the process of warrants. I am supported in this view by the commentary of section 205 in the book, above-mentioned of V. V.
Chitaley at page 1036 where it has been observed as under :- "Further, apart from this section (205) there is power under other provisions of the Code (for instance section 353), under which the personal appearance of the accused may be dispensed with by the Magistrate and the accused may be permitted to appear by pleader and this power may be exercised irrespective of the question whether a summons or warrant was issued."
Then at the foot-note of this page the reported case-law en this observation is cited and I need not reproduce it here because the very proposition in itself by bare reading of section 353, Cr. P. C.
Becomes clear.
8. For the reasons and discussions made above I am in agreement with the view taken by the learned Additional Sessions Judge, Karachi who has made the reference and I find that the impugned order cannot be sustained. This is the argument advanced by the learned Additional Advocate---General also who appeared before me on behalf of the State in these proceedings. He also suggested that the matter may be remanded back to the learned trying Magistrate to re-- consider the application for exemption and pass an order thereon under a proper provision of law. I agree with his opinion and accordingly set aside the impugned order of the Magistrate and direct that he shall once again consider the application made on behalf of the two lady accused under section 540-A, Cr. P. C. And proceed to apply his mind properly and invoke the relevant section of law on which he bases his order as has been clearly discussed above. Accordingly, the R & P of this will be sent back to the City Magistrate, Karachi who shall case make over the case to the trying Magistrate for the purpose directed herein. The reference is accordingly disposed of.