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1980 DIGILAW 87 (PAT)

Gauri Bhoumick v. Deepak Kumar Ghosh

1980-04-04

C.N.TIWARY

body1980
JUDGMENT C.N. Tiwary, J. 1. This application is directed against the order dated 18.6.1979, by which the learned Judicial Magistrate rejected two petitions dated 5.6.1979 filed on behalf of the accused petitioner Smt. Gaud Bhaumick. One of the petitions was for dispensing with her personal attendance and allowing her to be represented through a lawyer under Section 205 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) and the other was for recall of the warrant of arrest issued against her. 2. Relevant facts are these. The complaint-opposite party Deepak Kumar Ghosh, a resident of Patna, who is son-in-law of the accused petitioner Gauri Bhoumick, a resident of Calcutta, filed a complaint on 5.7.1978 against her in the court of the Chief Judicial Magistrate, Patna alleging that the accused-petitioner wrote a letter to one Sunil Banerji containing maliciously false and highly defamatory allegations against the complainant in order to defame and injure the complainant in the eye of society. By order dated 9.9.1979 the learned Chief Judicial Magistrate took cognizance of offence under Section 500 of the Indian Penal Code against the petitioner. Summons was ordered to be issued to the petitioner on complainant filing copy of petition etc. On 13.9.1978 summons was ordered to be issued by registered post. There is nothing in the order sheet to show that the service report of summons was received till 11.11.1978 or even thereafter. On 11.11.1978 bailable warrant of arrest was issued against the petitioner. Subsequently on the same date a petition along with a Vakalatnama, appointing Mr. S.K. Roy Chaudhary as her advocate, was filed on behalf of the petitioner. The petition was for dispensing with the petitioner's personal attendance and for allowing her to be represented through Advocate. It is said that the petitioner's Advocate Sri S.K. Roy Chaudhary failed to move the petition and, therefore, it was rejected on 15.1.1979. The petitioner was not informed of the order of the learned Magistrate by her Advocate Sri S.K. Roy Chaudhary. The petitioner thereafter engaged other Advocates, namely, Sri Kalyan Kumar Ghosh and Sri Abhijit Sinha on her behalf in place of Sri S.K. Roy Chaudhary. 3. On 9.2.1979 which was a date fixed in the case, a fresh application under Section 205 of the Code was filed for dispensing with the personal attendance of the petitioner. This was ordered to be put up on 17.2.1979. 3. On 9.2.1979 which was a date fixed in the case, a fresh application under Section 205 of the Code was filed for dispensing with the personal attendance of the petitioner. This was ordered to be put up on 17.2.1979. In the meantime the case was transferred to the file of Sri B.B. Verma, Magistrate, 2nd class. A petition under Section 205 of the Code on behalf of the petitioner was again filed in the court of Sri B.B. Verma. On 3.3.1979 Sri B.B. Verma wrote to the Chief Judicial Magistrate that the case was triable by a First Class Magistrate and therefore, it should have been transferred from his court to a competent court. By order dated 31.3.1979 the Chief Judicial Magistrate transferred the case in the Court of Sri R.K. Mishra, Judicial Magistrate, first class. By order dated 21.4.1979 the Judicial Magistrate, Sri R.K. Mishra rejected the petition filed under Section 205 of the Code on behalf of the petitioner on the ground that an earlier warrant of arrest had already been issued against the petitioner. 4. The petitioner filed Criminal Revision No. 622 of 1979 against the order dated 21.4.1979 which was dismissed on 13.5.1979 with the following observations :- "Mr. S.C. Ghose appearing on behalf of the petitioner has submitted that the petitioner is an old lady aged about 60 years and is suffering from heart trouble at Calcutta and so it would not be either prudent or safe to bring her all the way from Calcutta to Patna for her mere appearance in Court where her personal attendance can easily be dispensed with. I think Mr. Ghose should try to impress the learned Magistrate about the circumstances under which the petitioner is unable to appear personally in Court at Patna and the learned Magistrate will pass orders after considering the prayer made on behalf of the petitioner, with this observation this application is dismissed.” The petitioner, thereafter, moved the Judicial Magistrate by filing the aforesaid two petitions dated 5.6.1979 one for the recall of the order for issue of warrant against her and the other under Section 205 read with section 317 of the Code. Those petitions were dismissed by the learned Magistrate by the impugned order dated 18.6.1979. Hence this application. 5. Those petitions were dismissed by the learned Magistrate by the impugned order dated 18.6.1979. Hence this application. 5. It is urged on behalf of the petitioner that the petitioner is an old widow and she is suffering from cardial trouble and is a heart patient and has been advised complete rest by her physician. It is submitted that there is danger to the petitioner's life, if she has to come to Patna on every date fixed in the case. A certificate granted by Dr. R.S. Mazumdar, Medical Superintendent, South Eastern Railway, Calcutta, was filed by the petitioner before the learned Magistrate in support of her prayer for exemption of her personal attendance. In these circumstances it is submitted by the learned counsel for the petitioner that the personal attendance of the petitioner may be dispensed with and she may be permitted to be represented through her lawyer. 6. Learned counsel appearing on behalf of the complainant-opposite party has opposed the prayer made on behalf of the petitioner and has submitted that in this case a warrant of arrest was also issued against the petitioner and, therefore, no order exempting her personal attendance under section 205 of the Code can legally be made by the Magistrate. 7. As pointed out by the Learned Counsel appearing on behalf of the petitioner, summons was issued to the petitioner on 9.9.1978 but there is nothing in the order-sheet to show that the service report of summons was received by the learned Magistrate. This is a summons case and the Magistrate was not justified in issuing warrant of arrest against the petitioner without receiving the report regarding service of summons on the petitioner. There is some force in the argument that issuance of warrant of arrest in the circumstances of the case was abuse of the process of the Court and that the Learned Magistrate was not justified in taking stand on somewhat incorrect order of his in refusing the permission to the petitioner to be represented through her lawyer. 8. In the court of the Learned Magistrate no counter affidavit was filed on behalf of the complainant-opposite party denying the allegations that the petitioner is a heart-patient and that she has been advised complete rest by her attending physician. 8. In the court of the Learned Magistrate no counter affidavit was filed on behalf of the complainant-opposite party denying the allegations that the petitioner is a heart-patient and that she has been advised complete rest by her attending physician. Of course in the counter affidavit filed in this court on behalf of the opposite party it is said that to the best of knowledge of the opposite party, the petitioner is not in such a physical condition which makes her Incapable to attend the court personally at Patna. It is thus manifest that even in the counter affidavit filed in this case, the allegations made by the petitioner in her petition that she is suffering from cardial trouble and is a heart patient has not been specifically denied. 9. Section 205 of the Code confers powers upon a Magistrate to dispense with the personal attendance of the accused whenever a summons is issued. Section 205 of the Code deals with the initial appearance of the accused. Thereafter Section 273 of the Code by necessary implication confers power on every Court to dispense with personal attendance during the trial or inquiry. Section 317 of the Code has-enlarged the Court's power to dispense with the personal attendance of the accused at the hearing stage. 10. Although there is no exemption in law merely because the accused is a Pardanashin woman, discretion must reasonably be exercised by consideration of social status and custom and also the nature of the case. Ordinarily exemption from personal attendance. should be granted to a woman accused where no material has been placed justifying an order for personal attendance. 11. High Court has ample power under Section 482 of the Code to direct the Magistrate to dispense with the presence of the accused during any inquiry or trial before him. 12. On the facts and in the circumstances set forth above and for the ends of justice the application is allowed, the impugned order is set aside and the Learned Magistrate is directed to exempt the petitioner from personal attendance under section 205 of the Code and permit her to appear through a lawyer. It will, however, be open to the Learned Magistrate to direct the petitioner to appear personally at any stage of the trial if the Learned Magistrate considers her personal attendance necessary.