Hasnain Massodi, J. - M/S Dujodwala Resins and Tarpenes Limited on 5th June, 1999 filed a complaint against Shri Suresh T. Kilachand and two others before the learned Chief Judicial Magistrate, Jammu, alleging commission of offence punishable under Section 420 RPC by the accused. The learned Chief Judicial Magistrate recorded statement of the complainant and his witnesses and on perusal of the complaint and the statements, prima facie found accused to have committed offence punishable under section 420 RPC. The trial Magistrate took cognizance and issued process against the accused. The accused questioned the order dated 5th June, 1999, whereby cognizance was taken and process issued, in a revision petition before the learned Chief Judicial Magistrate. The Revisional Court accepted the revision and made a reference to the High Court in terms of Section 438 Cr.PC recommending quashment of the trial Court order assailed in the revision. The reference was, however, rejected vide order dated 31st May, 2000, and the trial Magistrate was to proceed in the matter in accordance with law. The accused questioned the order dated 31st May, 2000, through Special Leave Petition before the Supreme Court. The Special Leave Petition was dismissed on 11th September, 2001, and trial Court was directed to decide the matter on merits in accordance with law without being influenced by the observations made by the High Court in the impugned order.

2. The accused again approached the trial Magistrate (Sub Judge) Judicial Magistrate 1st Class with an application that as during pendency of Special Leave Petition, the complaint had been dismissed by the trial Magistrate on 18th November, 2000, and consigned to records, no further action was warranted in the matter even after the Supreme Court on 11th September, 2001 dismissed the Special Leave Petition and directed the trial Magistrate to proceed in the matter in accordance with law. In alternative, it was prayed that in case, further proceedings were continued, the accused be exempted from personal appearance in view of the grounds urged in the application. The application was disallowed by the trial Magistrate on 25th February, 2002. The trial Magistrate was of the view that the order dated 18th November, 2000, whereby the complaint was dismissed and consigned to records was to be taken as an order keeping the proceedings in the complaint pending till the Special Leave Petition before the Supreme Court was disposed of and once the Supreme Court dismissed the Special Leave Petition and directed the trial Magistrate to proceed in the matter, the complaint got revived and was to be dealt with in accordance with law. The trial Magistrate declined the prayer for exemption of the accused on the grounds that the allegation against the accused was serious in nature and carried maximum imprisonment up to seven years and that the accused were not entitled to the concession. However, the trial Court exempted the accused No. 1 - Mr. Suresh T. Killachand from personal appearance subject to production of a medical certificate from a recognised Hospital giving the details of his ailment.

3. The order of the trial Magistrate dated 25th February, 2002, was assailed in a revision before Sessions Court, Jammu. The revision was transferred to the Court of 2nd Additional Sessions Judge, Jammu. The revisional Court did not interfere with the trial Court order dated 25th February, 2002, to the extent it related to the prayer of the accused that the proceedings on complaint be closed. However, the learned 2nd Additional Judge allowed the revision petition against the trial Court order to the extent it disallowed the prayer of the accused for exemption from personal appearance. The Revisional Court, accordingly, vide its order dated 4th October, 2002, made a recommendation to the High Court in terms of Section 438 Cr.PC, recommending quashment of the trial Court order to the extent it rejected the prayer of exemption. The reference was accepted on 31st December, 2002. However, the accused on 17th February, 2003, laid a motion for rehearing of the criminal reference. The ground urged in the application was that the notice was not issued to the accused-respondents and the reference was dealt with in their absence. The application for rehearing the reference registered as Criminal Miscellaneous Petition No. 33/2003 was allowed on 9th October, 2006, and the Criminal Reference directed to be taken up for rehearing.

4. I have gone through the background record as also the reference made by learned 2nd Additional Judge, Jammu, recommending quashment of the order of trial Magistrate dated 25th February, 2002, to the extent it declines prayer of the accused for exemption from personal appearance. I have heard learned counsel for the parties.

5. Section 438 Cr.PC required the revisional Court (Sessions Judge or Chief Judicial Magistrate), to make report/reference to the High Court, in the event, such revisional Court on examining the record of any proceedings under Section 435 or otherwise to make such recommendation, thinks fit to make recommendation that a sentence or an order be reversed or altered. The provision is no more on the statute book, inasmuch as, it has been replaced by a new Provision by the Amendment Act, of 2006 (Act No. XI). Section 438 Cr PC, after amendment, reads as under:-

"438. Sessions Judges powers of revision. -

(1) .............

(2) .............

(3) Where any application for revision is made by or on behalf of any person before the Session Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.

(4) An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge"

6. In view of the aforesaid amendment, the Sessions Judge/ Additional Sessions Judge while exercising revisional powers is not required to make a report to the High Court. The order of Sessions Judge/Additional Sessions Judge, in exercise of revisional jurisdiction under Section 435 is to prevail , without report to the High Court or concurrence to the report by the High Court. The amendment to the Criminal Procedure Code whereby Section 438 has been replaced renders the reference on hand infructuous.

7. The above position apart, the conclusions drawn by learned 2nd Additional Sessions Judge while dealing with Criminal Revision No. 132 of 2002, and making the reference on hand are in conformity with law. There is no scope of any disagreement with revisional Court and the trial Magistrate that the order of trial Court dated 18th November, 2000, consigning the complaint to records, unmindful of pendency of Special Leave Petition before the Supreme Court is in the facts and circumstances of the case to be taken as keeping proceedings in the complaint in abeyance till the Special Leave Petition was disposed of by the Supreme Court. Once the Supreme Court while disposing of the Special Leave Petition on 11th September, 2001, directed the trial Court to proceed with the matter in accordance with law, there was no option for the trial Court but to recall the case file from the record room and proceed with the matter as directed by the Supreme Court.

8. There is no merit in the case set up and the argument advanced by the accused that in view of the trial Court order dated 18th November, 2000, the complaint could not be revived and the proceedings in the complaint were incompetent. The argument was, therefore, rightly rejected by the trial Magistrate and for valid reasons did not find favour with the revisional Court. The revisional Court was again right in holding that the application for the exemption of the accused was not disposed of by the trial Magistrate in accordance with law. It appears that the trial Magistrate while declining exemption from personal appearance, to the accused 2 and 3, was influenced by the gravity of the offence alleged against the accused, as indicated by the punishment it carried.

9. The trial Magistrate while according consideration to exemption of the accused from personal appearance is not to place exclusive focus on the seriousness of the offence alleged against the accused or the sentence prescribed under law. The trial Court is expected to consider the hardship to which the accused may be exposed in the event Court insists of his /her personal appearance having regard to the different factors like state of health, of the accused gender, age, distance between ordinary place of residence and the Court etc. It is to be realised that once the trial Court asks the accused to attend the trial, the order does effect though in a limited manner his right to life and personal liberty guaranteed under Article 21 Constitution of India. The power to allow exemption from personal appearance is, thus, to be liberally exercised. There may be cases where the accused is only bread earner of his family and not have a permanent employment where he can avail casual/casual leave absence. In such case, the earnings made by the accused during the day may be the only source of livelihood for him and his family. In such circumstances, the trial Court is expected to be more liberal in allowing exemption from personal appearance as compared to accused, who has a permanent employment, can avail casual leave and is not otherwise disabled from attending the trial. Same is true about the state of health of the accused. The trial Court while dealing with exemption from personal appearance would not treat the old aged, infirm person or the person belonging to insular section of society like women, children, the same way as it would deal with the case, where the accused is healthy and does not suffer from any infirmity as would make it difficult if not impossible for him to attend the trial. The illustrations can be multiplied. However, the baseline is that the power to allow exemption from personal appearance in favour of the accused is not to be exercised rarely and sparingly freely and liberally.

10. So viewed, the revisional Court order dated 4th October, 2002, is in strict conformity with law. The reference is, accordingly, answered.

11. It needs to be reiterated that the reference in wake of amendment to the Code of Criminal Procedure whereby Section 438 has been replaced is rendered infructuous, inasmuch as, the amendment is retrospective in nature. However, independent of such conclusion, t with revisional Court Order and the reference have been dealt with on merits, so as to exclude all chances for either of the parties to further delay the trial that has hardly seen progress during last thirteen years, i.e. with effect from 5th June, 1999, when the complaint was filed.

12. The trial Court is directed to pick up threads from order dated 25th February, 2002, and proceed with the complaint expeditiously. The trial Court would do well to list the complaint at least once in two weeks so that the proceedings are taken to their logical end as far as possible by 31st December, 2012. The trial Court shall not insist on personal appearance of the accused unless their presence is required to satisfy mandate of any of the provisions of the Code. The parties through their counsel are directed to appear before the trial Court/trial Magistrate on 30th June, 2012.