This is a reference made by the Sessions Judge, Jammu in Criminal Revision No. 40 of 2010 filed before him against an order of the Sub-Judge Magistrate First Class, Jammu, rejecting an application of Mst. Savitri for exemption from personal attendance in a case under Ss. 363 and 366, R. P. C., in which she figured as one of the accused persons, on the ground that under S. 353, Cr. P. C., the trial Magistrate had no power to grant such exemption. The learned Sessions Judge after examining the case, has held that the order of the trial Magistrate was wrong and that he had power under S. 353, Cr. P. C., to exempt an accused person from personal attendance before him. He has, therefore recommended that the order of the trial Magistrate should be set aside and that Mst. Savitri should be exempted from personal attendance in Court subject to the condition that she should appear in Court on occasions when her presence is considered essential by the trial Magistrate.

(2) We have heard arguments in this case. The contention of the learned counsel for the opposite party is that S. 353, Cr. P. C., does not by itself empower the trial Magistrate to exempt an accused person from personal attendance in his Court. Section 353, Criminal P. C. is as follows:

"Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader."

It is urged that the words "when his personal attendance is dispensed with" in this section merely state a fact and do not by themselves authorise the Court to grant exemption to an accused person from personal attendance.

It is stressed that the power to grant exemption from personal attendance by a trial Magistrate has been expressly given in the different provisions of the code of Criminal Procedure, e.g., S, 205 or S. 540-A. Section 205, Cr. P. C. empowers a Magistrate at the time of issuing a summons, if he sees reasons to do so, to dispense with the personal attendance of the accused and to permit him to appear by his pleader. It is obvious that this power cannot be used in a case in which a warrant has been issued by the Magistrate in the first instance as has been done in the present case, under S. 540-A at any stage of an inquiry or trial under the Code, where two or more accused are before the Court, the Judge or Magistrate on being satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, may dispense with the attendance of such an accused person or persons and proceed with such inquiry or trial in his or their absence.

The learned counsel for the opposite party, however admits that the High Court has power under S. 561-A, Cr. P. C. to grant exemption to an accused person from personal attendance during his trial.

In support of the view that S. 353, Cr. P. C. does not by itself empower a trial Court to dispense with the personal attendance of an accused person reliance is placed on - Madho Rao-v. Iswardas Sheoratan, AIR 1949 Nag 334 (A). In that case the learned Judges referred to a string of cases decided by the different Indian High Courts in which it had been held that S. 353, Cr. P. C., by necessary implication confers power on the presiding officer, whether he is a Magistrate or a Sessions Judge or a Judge of the High Court, to dispense with the personal attendance of an accused person. It is then added:

"We have considered the wording of S. 353 very carefully and say with great respect that we are unable to agree with that view. The words used are when his personal attendance is dispensed with. The conditions under which personal attendance can be dispensed with are not mentioned therein and we do not think that it confers power on Courts to dispense with personal attendance of the accused."

AIR 1949 Nag 334 (A), however, was considered by

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