AURANGZEB vs BILAL and 5 others

' In this criminal revision petition, the petitioner has questioned the order, dated 15-7-2000 of the learned Additional Sessions Judge-II, Nowshera, whereby he granted exemption from personal appearance to one of the accused namely Alam Waheed, within the meanings of section 540-A, Cr.P.C. In case F.I.R. No,148, dated 28-5-1998.

2. Brief facts of the case are that accused Alam Waheed alongwith others was charged by the complainant/petitioner for putting the outer gate of his Hujra to fire. The accused were accordingly booked under section 436/34, P.P.C. He accused in the case applied for pre-arrest bail and the concession was granted to them. Thereafter, when the case was put in Court for trial, by then one of the accused namely Alam Waheed was abroad in connection with his livelihood. He, however, in response to the summons issued by the Court, sent Vakalat Nama through the concerned Embassy in favour of an Advocate and also submitted an application for his personal exemption from appearance before the Court due to his non-availability in the country. The said application was allowed by the learned trial Court in the interest of justice, against which the present revision petition has been filed praying therein for cancellation of the surety bonds of the accused, declaring him as a proclaimed offender and ordering the retrial in the case.

3. The learned counsel appearing for the petitioners argued that under section 540-A, Cr.P.C., an accused can only be exempted from personal appearance if he is present before the Court himself and in absence of an accused, no order of exemption could legally be passed. The argument is, however, without -any substance. If section 540-A, Cr.P.C. Is read together with subsection (2), it would reveal that the only restriction upon the Court towards grant of exemption to an accused person is that either he himself should be before it at the time of seeking exemption or he should be represented by a pleader.

' For the sake of convenience section 540-A, Cr.P.C. Is hereby reproduced as under:-- "(1) 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.

(4) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

'The words "before the Court" can, therefore, not be assigned the strict meaning of personal attendance of an accused before the Court, because of one of the necessary clement for attracting the jurisdiction of the Court under this section that an accused is to be represented by a B pleader. Perusal of the Vakalat Nama sent by the accused Alam Waheed from abroad shows, that he has duly nominated and engaged one Wahid Ali Khan, Advocate, as his pleader in the case, who is duly representing the accused in the proceedings before the Court.

5. Besides, the circumstances in which the personal appearance of accused Waheed Alam has been dispensed with by the learned trial Judge, obviously for the benefit of the other accused whose trial is likely to be delayed unnecessarily for no fault on their part, also attract no patent illegality in the exercise of such discretion, which on one hand is quite proper, occasioning no failure of justice in the circumstances of the case and on the other hand also does not harm the complainant.

6. For the aforesaid reasons, the revision petition being without ID any force is, therefore, dismissed.