P L D 2004 Supreme Court 160 (PLP)

KARAMAT NAZIR BHANDARI, J.

Petitioner Haji Aurangzeb alongwith his three sons namely, Abdul Ghaffar, Muhammad Siddique and Liaqat are accused in case F.I.R. 'No. 448 dated 26-12-2001 registered at Police Station, K:T.S., Haripur under sections 337-A(ii)/34, P.P.C. The challan was presented in the Court on 15-3-2002. It is stated that in the month of July, 2002, Muhammad Siddiq co-accused left the country to avail the offer of an employment in Abu Dhabi. In his absence on 5-9-2002, an application for exemption was filed on his behalf by a learned counsel, Mr. Fareed Khan Alizai; which was rejected on the same date i.e. 5-9 2002. The learned trial Magistrate was of the view, that accused Muhammad Siddiq could not have gone abroad without permission of the Court. On revision, this order was. maintained by the Sessions Judge, Haripur. A petition (Cr.M.(Q) No.48/02) under section 561-A read with section 540-A, Cr.P.C. filed in the Peshawar High Court Circuit Bench, Abbottabad to call in question the order of the trial Magistrate and of the Sessions Judge was also dismissed by a learned Single Judge of the High Court. The petitioner-Haji Aurangzeb co-accused solicits leave to appeal from the judgment of the Peshawar High Court Circuit Bench, Abbottabad dated 12-5-2003.

2. It is extremely doubtful if the petitioner can maintain this petition in his own name. There is nothing on record indicating that Muhammad Siddiq accused who has been denied exemption, has authorized the filing of this petition. The petition is liable to be summarily rejected on this ground alone.

3. Even on merits, no case for grant of leave to appeal has been made out. In support of the claim that exemption ought to have been granted to Muhammad Siddiq accused, learned counsel has relied on the cases of Aurangzeb v. Bilal and 5 others 2002 PCr.LJ 947; Dr. Ali Yahya v. The State 1989 PCr.LJ 1652; Shah Zaman v. Sher Afzal Khan and another PLD 1993 Pesh. 155 and Muhammad Hussain v. Pervaiz ur Rehman and another 1980 PCr. LJ

1. Support from the above said decided cases is sought for the proposition that the exemption can be granted to an accused who is not physically present in the Court and in fact is not even within territorial limits of the Court. The precise submission is that the exemption could not have been denied simply on the ground that the accused went away without permission of the Court or without seeking exemption by personally appearing in the Court. Learned counsel for the petitioner has explained that at the time when the accused went abroad, Presiding Officer of the Court was not available and the accused left the country in a hurry.

4. We do not find force in the submission as canvassed. Normally an inquiry or trial on criminal charges takes place in the presence of the accused. (See section 353 of Code). This rule is for the benefit of the accused. If the accused refuses to appear to face the charges, under the provisions of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as "Code"), his presence can be secured by use of coercive process and if on bail, the bail can be cancelled and he can be lodged in Jail.' The grant of exemption is exception to the above rule. Exception cannot be claimed as a matter of right. It is only when on fulfilment of certain conditions that the Court can, in its discretion, grant exemption, for reasons to be recorded.

5. The, subject is dealt with under section 540-A of the Code, which is reproduced for ready reference: "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 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 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 arty 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 important words in subsection (1) have been underlined. The provision implicitly deals with a situation where there are two or more accused in the Court facing inquiry or trial and subsequently have become incapable of remaining before the Court. Plain meanings of the words-indicate that the accused has to be physically present before the Court and subsequently, if has become incapable of remaining before the Court, exemption can be granted; for reasons to be recorded.

6. Here, in this case, the accused left the country in the month of July, 2002 as stated by learned counsel before us while application for exemption was made on 5-9-2002. The absence of Presiding Officer was not an insurmountable obstacle. An application could have been filed before the Sessions Judge and then in the High Court seeking transfer of the case or at least for entrustment of application for exemption to a competent Court of law 'so that appropriate orders could be obtained within time. No such effort was made in the present case.

7. All the relied upon judgments by the learned counsel are Single Bench Judgments and have their own peculiar facts. In the Lahore case, the accused had been facing trial for more than two and half years and according to the learned Judge, the conclusion of the trial was no where in sight. It is in these circumstances, that the accused went abroad and learned Judge allowed his revision and granted him exemption. According to the learned Judge, going abroad for personal work would fall within the expression "incapable of remaining before the Court". It is not clear from the judgment as to whether the accused went abroad after obtaining exemption or claimed exemption subsequently from abroad.

8. The most relevant case to the submission of learned counsel is the case' of Aurangzeb v. Bilal and 5 others 2002 PCr.LJ

947. In this case, the accused went 'abroad in connection with his livelihood before the challan was put in Court. When the challan was filed, one of the accused who had gone abroad claimed exemption and sent "Wakalat Nama" through the concerned Embassy in favour of an Advocate. The trial Court allowed the application. A revision was filed which was dismissed vide the reported judgment. This case is again distinguishable on facts inasmuch as the accused had left the country before filing of challan-Further, the perusal of the report shows that the learned Judge although has noticed the words "before the Court", he has failed to address to the word's "incapable of remaining before the Court". In our view, the underlined words have to be read together in order to gather the intention of the Legislature. In the case of Doctor Ali Yahaya 1989 PCr.LJ 1652 the facts were again different. The accused left the country for rejoining his service in Libya after obtaining `no-objection certificate' from the Superintendent of Police dated 11-2-1987. In this case, also the challan was put in the Court on 4-1-1988 during the absence of the petitioner, after about eleven and half months of the occurrence. It was in these circumstances, that an application for exemption was moved on his behalf. The trial Court declined the application but on revision, the same was allowed by a learned Single Bench. .Only fact common in the reported judgment and the present case is the sending of the application from abroad. The question whether the accused has to be physically present to claim exemption does not seem to have been directly in lis. The learned Judge granted exemption in order to facilitate the trial of remaining eight accused who were facing agony of delayed trial, for absence of ninth accused.

9. In the present case, challan was put in the Court on 15-3-2002 and Muhammad Siddiq, accused had almost four months to move the application for exemption. As observed above, absence of Presiding Officer did not present an insurmountable hurdle. He chose to leave without exemption and the application for exemption was moved on his behalf on 5-9-2002. The precedent case, therefore, is distinguishable from the present case.

10. It is clear to us that none of the relied upon precedent cases support the wild proposition canvassed by learned counsel before us. We will, therefore, conclude that normally the accused has to be physically present in the Court for claiming exemption and that if the Court is satisfied about his incapability of remaining before the Court, the Court may, proceed to grant exemption. Incapability is word of wide import and may cover all circumstances beyond the control of the accused. The exemption could be granted in absence en extremely exceptional cases like ailment of accused which rendered his movement difficult (like the case of paralysis) or departure from country or station is absolutely necessary and there is no time to have recourse to the Court for seeking permission/exemption.- It may be observed that the provision i.e. section 540-A. Cr.P.C. covers cases of temporary exemption from one or two dates of hearing or exemption till the conclusion of inquiry/trial. The Courts have to pass appropriate orders depending on the facts and circumstances of the case.

11. For the above reasons, we find no force in this petition, which is hereby dismissed and leave to appeal is refused. (Sd.) KARAMAT NAZIR BHANDARI, J SARDAR MUHAMMAD RAZA KHAN, J.

My separate note is appended. I agree with the conclusion. SARDAR MUHAMMAD RAZA KHAN, J.

While agreeing with my learned brother Mr. Justice Karamat Nazir Bhandari, I would add something to highlight the contents of section 540-A, Cr.P.C. in the background of its legislative history, showing as to where did the section stand at the initial stage, what were the amendments made, and, what the Legislature intended to omit at the one hand and add at the other.

2. The shape of section 540-A as it stood in its original and initial form in the year 1898 was as follows:-- ' "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 under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, the Judge or Magistrate may, if the 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 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." Two noticeable features of the section aforesaid were, firstly, that the number of accused under trial was not specifically considered. Even a single accused under trial could be granted exemption from personal appearance.

3. Second distinction was that the presence of accused before the Court was not a necessary requirement for grant of exemption. No doubt the words "before the Court" do appear in the old section as well but these are connected with the words and phenomenon of "Personal attendance" denoting the idea that if the Court is satisfied that the "personal attendance of the accused before the Court", is not necessary, his attendance may be dispensed with. Here the- words "before the Court" relate to personal or physical attendance in future and even to any date of hearing, when the accused, if absent, his attendance could be dispensed with provided: (i) he is represented by counsel and (ii) the Court is satisfied that his attendance before the Court, in the interest of justice is not necessary.

4. The present section as existing in our Code was inserted by Act XVIII of 1923 and remained so enforced in the Sub-Continent even prior to partition. It runs as follows:-- "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 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 any one 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 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

5. The perusal of aforesaid section would indicate that there are three conditions important to be noticed before a Court could exercise the discretion involved: firstly, that there should be two or more than two accused facing trial; secondly, that the- one asking for exemption should already be before the Court, and thirdly, that due to some incapability he be not in a position to remain before the Court. Here the words "before the Court" are joined with two or more accused whose presence before the Court precedes the necessity to grant exemption; while in the old section the said words linked with personal attendance of the accused related to the future arrangement.

6. After partition the section was further amended in the Indian Jurisdiction by Act XXVI of 1955 corresponding to section 317 of Indian Code of Criminal Procedure, 1973, the subsection (1), whereof being relevant is reproduced: "

317. Provision for inquiries and trial being held in the absence of accused in certain cases.--(1) At any stage of an inquiry or trial under-this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interest of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the 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."

7. It was no longer felt necessary by Indian Legislature that there should be two or more accused in the case or that they should be present in Court before any one of them applied for exemption. The ground for personal exemption was .not confined merely to incapacity to remain before the Court. A new dimension was given to the power of the Court which could even dispense, with the attendance of an, accused who persistently disturbed the proceedings in Court and whose presence was not necessary in the interest of justice.

8. The points of difference between the legislation in India and that in Pakistan, are, that the section inserted by Act XVIII of 1923 was still retained in our Code of Criminal Procedure, ' while some technicalities and requirements were done away with by certain amendments in the Indian part of the sub-Continent. What our law requires the Court to appreciate before the grant of exemption is that: (i) there should be `two or more' accused facing the trial; (ii) that the accused asking for exemption should be "before the Court"; and (iii) that, he be represented by a counsel. As already discussed with reference to law of our country, here the words "before the Court" employ the physical presence of and accused before the Court. The words "incapable of remaining before the Court" also give a strong indication of the fact that the accused who at one time was before the Court, has now become, for some reasons or the other, incapable to remain present before the Court for future.

9. In the conditions given above, I believe that on merit the exemption should have been granted to an accused who has gone abroad to earn his livelihood and who, in view of the prevailing delays in the disposal of cases, cannot wait for the commencement and conclusions of trial. I also have reservations that in case the Presiding Officer is not available or the challan is not put in Court, such person is bound, for years, to wait for the congenial atmosphere before leaving for abroad. When law requires the submission of report under section 173, Cr.P.C. within a normal period of fifteen days, the non-compliance thereof, for years together should not be counted to the credit of the prosecution and an accused be not compelled to bow before these culpable omissions, at the cost of his employment, livelihood of his family and better employment prospects abroad. Anyhow, I do agree, that once a challan is put in Court but the P:O, thereafter becomes non-available for an unreasonable time, the accused seeking exemption can resort to the Appellate Court for any appropriate order or for transfer of case to another Court.

10. What I comprehend from the history of section 541, is that the provisions of section 540-A, Cr.P.C. are to be interpreted with benevolence, because it is an enabling provision not meant to punish someone. The section, in the circumstances, aims at achieving three-fold benefit. One benefit being that of the exempted accused, second being that of the co-accused under trial and third being the convenience of the ourt itself. To my mind the only lacking feature in the instant case is that the accused asking for exemption has not been present before the Court. For this one and the only short coming, the grant of exemption was rightly denied to him. N.H.Q./A-452/S Leave refused.