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2003 DIGILAW 876 (PNJ)

Swarni v. Ram Kishan

2003-07-02

VINEY MITTAL

body2003
ORDER Viney Mittal, J. - The present petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as the "Code") has been filed by the petitioner for quashing of the orders dated February 17, 1999 and February 23, 1999 passed by the learned Judicial Magistrate I Class, Jalandhar. The respondent is the complainant. He filed a complaint under section 500 of the Indian Penal Code against the present petitioner. The petitioner was summoned in the aforesaid petition. The petitioner filed an earlier petition under section 482 of the Code being Criminal Misc. No. 16072-M of 1998 for quashing the aforesaid complaint and the summoning order. This Court vide order dated November 13, 1998 disposed of the aforesaid petition with a liberty to the petitioner to file a petition before the learned Judicial Magistrate I Class, Jalandhar seeking recall of the summoning order and claiming her discharge under section 245 of the Code. A copy of the aforesaid order November 13, 1998 has been appended as Annexure P/3 with the present petition. 2. Thereafter, in pursuance of the aforesaid liberty, the petitioner filed an application before the learned trial Magistrate. The learned trial Magistrate refused to entertain the aforesaid application filed by the petitioner by passing an order dated February 17, 1999. A copy of the aforesaid order dated February 17, 1999 has been appended as Annexure P/5 with the present petition. It was observed by the learned trial Magistrate that in fact since there was no provision in the Code of Criminal Procedure to mark the presence of the accused through counsel and that too, at the stage, when the proclamation against the accused has been effected, therefore, the prayer was not entertained. Subsequently through another order dated February 23, 1999, the learned trial Magistrate declared the petitioner as proclaimed offender and directed S.H.O., Police Station Division No. 4, District Jalandhar to proceed against her, arrest her and produce her before the Court. A copy of the aforesaid order dated February 23, 1999 is appended as Annexure P/6 with the present petition. 3. The petitioner has now approached this court challenging the aforesaid orders Annexures P/5 and P/6. 4. Shri Sarwan Singh, the learned Senior Advocate has submitted that the petitioner was a resident of England and is an old and sick lady. A copy of the aforesaid order dated February 23, 1999 is appended as Annexure P/6 with the present petition. 3. The petitioner has now approached this court challenging the aforesaid orders Annexures P/5 and P/6. 4. Shri Sarwan Singh, the learned Senior Advocate has submitted that the petitioner was a resident of England and is an old and sick lady. Under these circumstances, it was not possible for her to personally present the aforesaid application before the trial Magistrate seeking dropping of the criminal proceedings against her. It has further been submitted by the learned senior counsel that in fact a liberty having been granted to the petitioner by this Court vide order dated November 13, 1998, the learned trial Magistrate could not have refused to entertain the application filed by the petitioner through her counsel. 5. I have given my thoughtful consideration to the submissions made by the learned senior counsel for the petitioner. 6. It is apparent from the perusal of the order dated November 13, 1998 (Annexure P/3) that a specific permission was granted to the petitioner to approach the learned Magistrate and file an application for dropping of the criminal proceedings against her and her discharge in accordance with law. It was only thereafter that the petitioner had chosen to file the aforesaid application. There is no requirement of law that the application for dropping of the criminal proceedings was to be filed by the petitioner in person. The said application was duly filed by the petitioner through her counsel. Since the application was filed in pursuance to the liberty given by this court, therefore, the trial Magistrate apparently acted contrary to the aforesaid liberty and in violation of the directions issued by this court. Accordingly, the order dated February 17, 1999 (Annexure P/5) is quashed. The petitioner through her counsel shall be at liberty to file a fresh application before the learned trial Magistrate for dropping of the criminal proceedings against her or her discharge in accordance with law. While filing the aforesaid application, the petitioner would be well within her rights to take all such pleas which have been raised by her in the present petition and all other defences which are available to her, in law. On the filing of the aforesaid application, the learned trial Magistrate shall dispose of the same after affording an opportunity of hearing to all concerned. 7. On the filing of the aforesaid application, the learned trial Magistrate shall dispose of the same after affording an opportunity of hearing to all concerned. 7. It is further directed that the personal presence of the petitioner would remain exempted during the pendency of the proceedings before the trial Magistrate. However, the trial Magistrate would be well within his rights to secure the personal presence of the petitioner, as and when the same is required, in accordance with law. 8. The petition stands disposed of in the above terms. Petition allowed.