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Rajasthan High Court · body

1999 DIGILAW 79 (RAJ)

Sarla Rani Vadehra v. State

1999-01-20

G.L.GUPTA

body1999
Honble GUPTA, J.–This misc. petition is directed against the order dt. 12.10.89 and 12.12.89 passed by the learned Judicial Magistrate No.2, Bhilwara, whereby he allowed the application of the complainant-respondent No.2 for cross-examination of Smt. Sarla Rani Vadehra, accused-petitioner. (2). The facts necessary to decide the petition are these. Respondent No.2 Sushri Sobhagya Goyal was the Lecturer in Girls College, Bhilwara. Smt. Sarla Vadehra (petitioner) was the Principal of that College. Miss Goyal filed a criminal complaint against Smt. Vadehra and one Shri Shivnath Singh Kapoor for offence u/Ss. 166, 167, 177, 187, 217, 218, 504 and 511 IPC. When the enquiry was being held by the Magistrate under Chapter XV Cr.P.C., an application was filed u/S. 91 Cr.P.C. by Miss. Goyal for the production of some documents from the office of Smt. Vadehra which was allowed. A notice was sent to Smt. Vadehra for producing the document. On 21.9.84 Smt. Vadehra did not appear in Court but sent a reply that she was not competent to produce the documents and it could only be done after the orders of the Director, College Education, Jaipur. The non-attendance of Smt. Vadehra in Court and the reply offended the Magistrate and he directed that a notice u/S. 350 Cr.P.C. be given to her as to why proceedings should not be taken against her for disobedience of the orders of the Court. Smt. Vadehra appeared and filed reply supported by an affidavit. On 15.3.85 Miss. Goyal filed an application u/S. 340 Cr.P.C. praying for cross-examination of Smt. Vadehra on her affidavit. This appli- cation was disposed of by the Magistrate vide impugned order dt. 12.10.89 holding that the complainant has not filed any counter affidavit and hence the permission to cross-examine Smt. Vadehra could not be given and if she filed counter affidavit appropriate order would be passed. Thereafter Miss. Goyal filed counter affidavit. By the impugned order dt. 12.12.89 the learned Magistrate directed the cross-exa- mination of Smt. Vadehra on her affidavit dt. 24.1.85. (3). Mr. Shishodia strenuously argued that the order of the learned Magistrate is wholly illegal as the position of the petitioner before the trial court was that of the accused and she could not be asked to take oath and stand the test of cross- examination. (4). The learned Public Prosecutor could not support the order of the Magistrate. (5). (3). Mr. Shishodia strenuously argued that the order of the learned Magistrate is wholly illegal as the position of the petitioner before the trial court was that of the accused and she could not be asked to take oath and stand the test of cross- examination. (4). The learned Public Prosecutor could not support the order of the Magistrate. (5). The facts stated above make it clear that when the enquiry under Chapter XV, Cr.P.C. was going on in the complaint filled by respondent Miss Goyal, Mrs. Vadehra, accused named in the complaint,was asked to produce certain docu- ments and when she regretted her inability to produce the document a notice u/S. 350 Cr.P.C. was given to her and in reply to that notice Smt. Vadehra had filed her affidavit. The position of the petitioner obviously was that of the accused. It is settled principle that the accused cannot be administered oath in any circumstance save when he or she appears as a witness after making an application u/Sec. 315 Cr.P.C. The position would not be different even before the Magistrate directs the issuance of summons against the accused u/S. 204 Cr.P.C. In the complaint Smt. Vadehra was arrayed as the accused. The Magistrate could not compel Smt. Vadehra to produce the documents which would be used to prove charge against her. The proceedings held by the Magistrate for the production of the documents amounted to abuse of process of Court. (6). Apart from that, Section 350 Cr.P.C. applies only when a witness being summoned to appear before a criminal court without just excuse neglects or refuse to attend the time and place that the Court may punish him after following the summary procedure. The Section obviously applies to the person who is called as a witness in a case. Smt. Vadehra in the instant case was not called as a witness. She was made accused in the complaint and therefore no action could be taken u/S. 350 Cr.P.C. against her. Moreover, the Court had no occasion to make observations before issuing notice u/S. 350 Cr.P.C. that it was expedient in the interest of justice that Smt. Vadehra should be tried summarily. That being so, the proceed- ings u/S. 350 Cr.P.C. against her were wholly illegal. (7). Moreover, the Court had no occasion to make observations before issuing notice u/S. 350 Cr.P.C. that it was expedient in the interest of justice that Smt. Vadehra should be tried summarily. That being so, the proceed- ings u/S. 350 Cr.P.C. against her were wholly illegal. (7). That apart, the court can proceed u/S. 340 Cr.P.C. only when it is brought to its notice that offence as mentioned in Sec. 195(a)(b) was committed. The application of the respondent does not state that the act of the accused fell in any of the sections mentioned in clause (b) of sub-sec.(1) of Sec. 195 Cr.P.C. Therefore, the learned Magistrate has obviously erred in proceeding u/S. 350 Cr.P.C. (8). For the reasons stated above, the entire proceedings u/S. 350 or 340 Cr.P.C. are without jurisdiction and are liable to be quashed. (9). Consequently, the petition succeeds and the impugned orders are set aside. The record of the case be sent back to the trial Court for deciding the case according to law.