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Petitioner: MUHAMMAD ASHRAF VS Respondent: THE STATEHonorable Justice CHAUDHARY MUHAMMAD TAJCh. Muhammad Yunus Arvi,Sardar Abdul Razzik Khan
2004 Y L R 1915
2004 Y L R 1915
[Supreme Court (AJ&K)]
Present: Muhammad Yunus Surakhvi, C.J. and Chaudhary Muhammad Taj, J
MUHAMMAD ASHRAF---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.26 of 2003, decided on 23rd October, 2003.
(On appeal from the judgment of the Shariat Court dated 19-3-2003 in Criminal Revision No.4 of 2003).
Criminal Procedure Code (V of 1898)---
----Ss.205, 353 & 540-A---Penal Code (XLV of 1860), Ss. 341 /324, 337/337-A, 147, 148 & 149---Application for dispensing with personal appearance of accused-- Provisions of Ss.205, 353 & 540-A, Cr. P. C. had empowered the Court to dispense with personal appearance of accused---Court while granting such exemption had to apply its mind and pass an order keeping in view the facts and circumstances of the case---No restriction existed on the Court that personal attendance could be dispensed with but it only if accused appeared before it, but the Court could not pass any order in vacuum and had to consider the nature of allegation and other facts and circumstances of the case---No legal justification had been shown in the application for dispensing with personal appearance of accused and even at the time of arguments, applicants were unable to show any such justification---Application, was rightly dismissed by Courts below, in circum stances.
Ch. Muhammad Yunus Arvi, Advocate for Appellant.
Sardar Abdul Razzik Khan Addl A.-G. for the State.
Date of hearing 16th October, 2003
JUDGMENT
CHAUDHARY MUHAMMAD TAJ, J.--This appeal has been filed to challenge the order passed by the Shariat Court of Azad Jammu and Kashmir on 19-3-2003 whereby a criminal revision filed against the order of Tehsil Court of Criminal Jurisdiction, Mirpur was dismissed.
2. The facts are that a case under sections 341/324, 337/337-A., 147, 148 & 149, A.P.C. was pending before the Tehsil Court of Criminal Jurisdiction, Mirpur. During the pendency of the case an application on behalf of the appellant to dispense with the personal attendance was moved. The application after hearing the parties was dismissed. The appellant filed a revision petition before the Shariat Court of Azad Jammu and Kashmir which was also dismissed. This appeal challenges the aforesaid order.
3. Ch. Muhammad Yunus Arvi, the learned counsel for the appellant, contended that both the Courts below have held that the application to dispense with the personal appearance is not tenable in the absence of the accused. 1t was argued that the aforesaid observation is against law. The learned counsel argued that in suitable cases an application can be moved in absence of the accused therefore, the orders passed by the Courts below are illegal.
4. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, while controverting the arguments addressed on behalf of the appellant, argued that the appellant is not appearing before the trial Court as such a warrant has been issued. It was also argued that in such circumstances his attendance cannot be dispensed with particularly when there was no legal justification.
5. We have heard the learned counsel for the parties and also gone through the record. It may be mentioned that section 205, Cr.P.C. deals with exemptions from initial appearance and not during the trial while section 540-A, Cr.P.C. was enacted to meet the legal necessity of exemption of personal attendance during the inquiry or trial, where two or more accused are before the Court. If there are sufficient reasons to be recorded that anyone or more of such accused is or are incapable of remaining before the Court, if such accused is represented by a pleader, the Court can dispense with his attendance and proceed with such inquiry or trial in absence. The other section 353, Cr.P.C, provides that ail evidence shall be taken in the presence of the accused unless the personal attendance is dispensed with. The provisions of law by implication empowers the Court to dispense with personal appearance of the accused as provided in the other sections of the Code referred to above. However, the Court while granting such exemptions has to apply its mind and pass an order keeping in view the facts and circumstances involved. Relevant sections 205, 353 and 540-A, Cr.P.C. are usefully reproduced:
"205. Magistrate may dispense with- personal attendance of accused:---
(1) 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.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided.
353. Evidence to be taken in presence accused. ---Except as otherwise expressly provided, all evidence taken under [Chapters XX, XXI, XXII and XXII-A] shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
540-A Provision for inquiries and trial being held in the absence of accused in certain cases:---
(1) At any stage of an inquiry or trial tinder 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.
(2) 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 6t, 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 bare reading of the above provisions of law shows that in the circumstances mentioned above the personal attendance can be dispensed with in suitable cases. There is no restrictions on he Court that personal attendance can be dispensed with only. if the accused appears before the Court as such the orders passed by the Courts below to this extent are not correct in law. However, the Court cannot pass any order in vacuum but has to consider the nature of allegation and other facts and circumstances of the case. In the present case no legal justification has been shown in the application and even at the time of arguments the learned counsel was unable to show any such justification. Therefore, we are of the view that the appeal merits no consideration, which is dismissed in the circumstances.
H.B.T./82/SC(AJK) Appeal dismissed.