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1990 DIGILAW 243 (PAT)

Santosh @ Santosh Devi v. Neelam Devi

1990-07-26

BHUVANESHWAR PRASAD

body1990
Judgment B. Prasad, J. This application under section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code’) is directed against the order dated 15.6.1988 passed in Cl-472 of 1986 T.R. No. 1338 of 1988 passed by Shri Ram Niwas Prasad, Judicial Magistrate, 1st Class, Sitamarhi refusing the prayer of the petitioners to dispense with their personal attendance through their lawyers under section 205 of the Code. 2. It appears that the complainant-Opposite party had filed a complaint petition on 26.3.1986 before the Chief Judicial Magistrate Sitamarhi stating therein that on 28.1.1974 she was married to one Kasi Prasad Gadia, resident of village and P.S. Padrauna in the State of Uttar Pradesh. Thereafter, the Opposite party started living with her husband. Her in-laws, however asked her to demand a car and Rs. 1 lakh in cash from her father. Opposite party was not inclined to do so and told them that her father was not financially in a position to acceed to their demands. In the year 1981 she was sent to the place of her father at Sitamarhi. She however, went to village Padrauna (her father in laws place) on 5.3.1986. On 9.3.1986 the accused persons who happened to be the members of the family of her father-in-law again compelled her to go back to her parents for demanding the aforesaid amount of Rs 1 lakh and a car. They also snatched away her ornaments. A Panchayati was summoned in this connection according to which the in-laws family of the Opposite party was directed to take her back and keep her there. So far as the present petitioners are concerned they have contended that they are in no way concerned with the family of father-in-law of the Opposite party. They have also denied that petitioner no. 1 was ever married to Kasi Prasad Gadia. 3. In this petition petitioner no. 1 has contended that she is a pardanasin young lady and is a respected lady of the society and her appearance in court will injure her prestige and social status. So far as petitioner no.1 is concerned on his behalf it has been contended that he is an old man and is not in a position to undertake long journey from Padrauna to Sitamarhi to appear before the Magistrate on the dates fixed. So far as petitioner no.1 is concerned on his behalf it has been contended that he is an old man and is not in a position to undertake long journey from Padrauna to Sitamarhi to appear before the Magistrate on the dates fixed. He is also a chronic patient and the Doctor treating him has advised him to take complete rest. Petitioner no.1 has not done any Act, of cruelty to the Opposite party nor she snatched away the ornaments and sarees of Opposite party. Actually the Opposite party does not want to live with Kasi Prasad Gadia and to cover up her design she has filed this case falsely implicating the petitioners. The learned Magistrate without giving any reason has rejected the prayer of the petitioners for their representations under section 205 of the Code. The accused Anandi Devi, Usha Gadia, Mangal Prasad Gadia and Kasi Prasad had also moved before the learned Magistrate for their representations under section 205 of the Code. Their prayer was rejected by the learned Magistrate. However, this court by the order dated 7.7.1989 allowed their prayer as will appear from the order passed in Criminal Misc. case No. 6536 of 1989. Under these circumstances, it has been prayed that the learned Magistrate Shri Ram Niwas Prasad be directed to dispense with the personal attendance of the petitioners. 4. On behalf of the Opposite party these contentions have been seriously challenged. It has been submitted that the petitioners have not been able to make out any case for their representation under section 205 of the Code. It has also been pointed out that this prayer of the petitioners was rejected by the learned Magistrate and the order being interlocutory in nature no petition under section 482 of the Code of Criminal Procedure would lie. Even on merit the contentions of the petitioners have been challenged. It appears that in the present case cognizance of the offences under sections 379, 494, 498 and 120B of the Indian Penal Code read with section 4 of Prevention of Dowry Act, has been taken. 5. On behalf of the Opposite party it has been contended that since the allegations against the petitioners are serious in nature they are not entitled to an order under section 205 of the Code allowing to them to be represented through their lawyer. 5. On behalf of the Opposite party it has been contended that since the allegations against the petitioners are serious in nature they are not entitled to an order under section 205 of the Code allowing to them to be represented through their lawyer. It was the submission of the learned counsel for the Opposite party that it is only in trivial cases that the prayer under section 205 of the Code should be allowed. In view of these submissions it is necessary to examine the law on the subject. 6. Section 205 of the Code runs as follows:- Section 205 (l) "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 the manner hereinbefore provided." 7. This section shows that whenever a Magistrate issues a summons, he may dispense with the personal attendance of the accused and permit him to appear by his pleader. Of course, he is required to pass an order only when he sees reasons to do so. It is further well settled that this power can be exercised by the Magistrate even after the issue of summons though it has been repeated by held that in a warrant case also the Magistrate may in his discretion under section 204 issue a summons instead of warrant and in that case be can dispense with the personal attendance of the accused. 8. I will firstly take up for consideration the contention of the learned counsel for the Opposite party Shri Prabhat Kumar Jha that this Court in exercise of its inherent powers under section 482 of the Code cannot pass any order directing the Magistrate to allow the prayer of the petitioners for their representation under section 205 of the Code. In this connection he has relied on the case of Nand Lal Poddar Versus the State (1979 B.B.C.J. 132). In the said case the petition before this Court was filed under section 482 of the Code against the order of the trial Court. In this connection he has relied on the case of Nand Lal Poddar Versus the State (1979 B.B.C.J. 132). In the said case the petition before this Court was filed under section 482 of the Code against the order of the trial Court. It was held that the order rejecting prayer of the petitioner for his representation under section 205 of the Code was inter locutory in nature and it cannot be set aside in exercise of the revisional powers of this court or in exercise of the powers under section 482 of the Code, since the order was not without jurisdiction. This is a Single Bench decision of this court, by V. Mishra, J. As against it learned counsel for the petitioner has placed reliance on the case of Ravi Singh Versus State (1979 B.B.C.J. 437). This is also a single Bench decision of this court by Muneshwari Sahay, J. His attention had been drawn to the decision of this court in the case of N.L. Poddar (Supra). His Lordships was pleased to differ with this decision by holding that it cannot be said to have laid down a law of universal application that the inherent powers of the High Court cannot be invoked to correct an order passed under section 205 of the Code, Muneshwari Sahay, J. has relied on the case of Madhu Limaye Versus State of Maharashtra (A.I.R. 1978 S.C. 47) in support of his this view. He has also taken into consideration a number of decisions of different High Courts. In particular he has quoted the relevant paragraphs in the case of Madhu Limaye (Supra) in which Untwalia, J. has proceeded to observe as follows - "On a plain reading of Section 482, however, it would follow that nothing in the Code which would include sub-section (2) of section 397 also, shall be deemed to limit or effect the inherent powers of the High Court But if we were to say that the said bar is not to operate in the exercise of inherent power at all it will be setting at naught one of the limitation imposed upon the exercise of the revisional powers. In such a situation what is harmonious way out ? In such a situation what is harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional powers of the High Court meaning thereby that the High Court will have no power of revision in relation to any inter locutory order. Then his accordance with one or other principles enunciated above the inherent power will come into play, there being no other provisions in the Code for the redress of the grievance of the aggrieved party," 9. From this it would become perfectly clear that the inherent power under section 482 of the code can be exercised even if the order under challenge is inter-locutory in nature and this court in exercise of its inherent powers will make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. 10. In the present case on behalf of the petitioners it has seriously been a argued that their prayer for representations under section 205 of the Code should be allowed to secure ends of justice since they are in no way concerned with the family of the father in law of the Opposite party and the allegation that petitioner no. 1 is the second wife of the husband of the. Opposite party is entirely false. Moreover, it has been pointed out that petitioner No. 1 is a Pardanasin young lady belonging to a respectable society and her appearance before the court will injure her prestige and social status. So far as petitioner no. 2 is concerned it has been contended that he is too old and a chronic patient and can ill afford to undertake the long journey from Padrauna to Sitamarthi to appear before the Magistrate on every date. In support of this contention the medical certificate (Annexure-1) has been filed. 11. So far as petitioner no. 2 is concerned it has been contended that he is too old and a chronic patient and can ill afford to undertake the long journey from Padrauna to Sitamarthi to appear before the Magistrate on every date. In support of this contention the medical certificate (Annexure-1) has been filed. 11. The law on this point is well-settled where the presence of the accused in the Court is not necessary for his being identified; there is no apprehension of his absconding and the absence of the accused from court is not likely to prejudice the complainant, it was held by the Bombay High Court to be a fit case for granting him exemption under section 205 of the Code (1982 Cr. L.J. 202 (Maha). It has also been repeatedly held that where the accused is a Pardanashin lady the discretion should be used liberally and the court should invariably exempt her, Also in the cases in which the accused is residing at a long distance from the court it is well settled that the Magistrate should use the discretion liberally. The question where the accused, a Pardanasin lady should be exempted from personal appearance under section 205 of the Code came up for consideration before a Division Bench of Calcutta High Court in the case of Raj laxmi Devi Versus State (A.I. R. 1953 Cal 154) It has been held in this decision that simply because the accused is a pardanasin lady, as a matter of right, she is not entitled to be exempted from the personal appearance. However, it has been observed that at the same time the discretion vested in the court under section 205 of the Code must be reasonably exercised. Also it was observed that even if the accused do not very strictly observe the Parda it does not follow 'hat they should, on every occasion be dragged into a court of law. The court has to remember the habits and customs of the country and the social stigma that attaches to a Pardanasin lady appearing in the open court. 12. In the impugned order the grounds for refusing the prayer of the petitioner are that as per the allegations made in the complaint petition accused Kasi Prasad Gadia has taken second wife and his family members had snatched away forcibly the ornaments and the clothes of the Opposite party. 12. In the impugned order the grounds for refusing the prayer of the petitioner are that as per the allegations made in the complaint petition accused Kasi Prasad Gadia has taken second wife and his family members had snatched away forcibly the ornaments and the clothes of the Opposite party. As pointed out above, the petitioners do not belong to this family. The only allegation against petitioner no. 1 is that she is the second wife of Kasi Prasad Gadia; the allegation which has been strongly refund by her. In this connection, it may be mentioned here that some of the other accused in this case namely Anandi Devi and others including the father in law and the husband of the Opposite party had made a similar prayer for quashing of this very order of the Magistrate dated 15.6.1988 by which he had refused their prayer for representations order section 205 of the Code. It appears that by the order dated 7.7.1989 passed in criminal Misc. No. 6536 of 1989 this court has observed that the petitioners will not be forced to appear in the court and were exempted under section 205 of the Code for the present. Learned counsel for the petitioner has submitted that under this circumstance their prayer for representation should be allowed. 13. The next question that will arise for consideration would be whether in exercise of the powers under section 482 of the Code this court can allow the prayer of the petitioners for their representations under section 205 of the Code. As will appear from the language of section 482, nothing in this Code will limit or affect the inherent powers of the High Court to make such order to secure the ends of justice. In the present case, as will appear from the discussions made above, the ends of justice require that the prayer of the petitioners for their representation under section 205 of the Code should be allowed. In the case of Ravi Singh (Supra) also while allowing the petition under section 482 of the Code this court bad directed the Magistrate to exempt the personal attendance of the accused under section 205 of the Code and to permit them to appear through the lawyer. In the case of Ravi Singh (Supra) also while allowing the petition under section 482 of the Code this court bad directed the Magistrate to exempt the personal attendance of the accused under section 205 of the Code and to permit them to appear through the lawyer. It was of course observed that it would be open to the learned Magistrate at any stage of the trial, if be considers the personal appearance of the accused necessary, to direct them to appear in the court. 14. Under the circumstances mentioned above, this application is allowed and the impugned order is quashed. The learned Magistrate is directed to exempt personal attendance of the accused under section 205 of the Code and to permit them to appear through their lawyers. Of course, in exercise of the powers conferred by sub-section (2) of section 205 of the Code it will be open to the learned Magistrate trying the case, in his discretion, to direct the personal attendance of the accused, if and when he would fird if necessary. HP Application allowed.