Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 2370 (ALL)

Radhika Khandelwal v. State of U. P.

2013-09-20

RAVINDRA SINGH

body2013
JUDGMENT Hon’ble Ravindra Singh, J. : Heard Sri Manish Tiwary and Sri A.K.Awasthi, learned counsel for the petitioner, learned A.G.A.for the State of U.P., Sri A.K.Goel & Dr. A.K.Srivastava, learned counsel for respondent no.2. This petition has been preferred by petitioner Smt. Radhika Khandelwal with the following prayer: (a) to issue a writ, order or direction in the nature of certiorari quashing the orders dated 29.11.2004 passed by Additional Sessions Judge, Fast Track Court No.2, Bareilly ( Annexure-1) in Criminal Revision No. 311 of 2004 and also the order dated 28.8.2004 passed by J.M.I Bareilly in Case No. 2386 of 2004 ( Annexure-2) (b) to issue a writ, order or direction in the nature of mandamus directing the respondent to stay all further proceedings arising out of Crl. Case No. 2386 of 2004 Promod Khandelwal vs. Radhika Khandelwal u/s 138 of Negotiable Instrument Act, P.S. Kotwali District Bareilly depending in the court of Judicial Magistrate I,Bareilly during the pendency of this writ petition in this Hon’ble court, (c) to issue any other writ, order or direction which this Hon’ble court may deem fit and proper. and (d) award cost to the petitioner 2. The facts, in brief, of this case are that a complaint under sections 138/142 N.I.Act and section 420 I.P.C.has been filed by O.P.No.2 Promod Khandelwal against the petitioner in which the petitioner has been summoned under section 138 N.I.Act by C.J.M.Bareilly but in pursuance of the order passed by learned C.J.M. Bareilly, the petitioner did not appear in the court of learned C.J.M. Bareilly, thereafter, the petitioner moved application under section 204 Cr.P.C. on 1.10.2003 and application under section 205 Cr.P.C.has been moved on 1.10.2003 with a prayer that the complainant may kindly be directed to supply the copy of complaint to the applicant and time to submit the claim for discharge may kindly be permitted to the petitioner under section 204 Cr.P.C.and the prayer in the application under section 205 Cr.P.C.has been made that the personal appearance of the petitioner may kindly be exempted till further orders and the applicant may kindly be permitted to appear before the court concerned through counsel. Both the applications under section 204 and 205 Cr.P.C. have been decided by the learned Judicial Magistrate I Bareilly on 28.8.2004 by which the application under section 205 Cr.P.C. has been rejected and the application under section 204 (3) Cr.P.C.was allowed and the complainant was directed to furnish the copy of the complaint to the petitioner within a week and the petitioner was directed to appear before the court concerned on 25.9.2004, the order dated 28.8.2004 passed by learned Judicial Magistrate I Bareilly under section 205 Cr.P.C.has been challenged by the petitioner before the Sessions Court by way of filing Criminal Revision No.311 of 2004, the same has been dismissed by learned Additional Sessions Judge/FTC Court No. 2, Bareilly on 29.11.2004. Being aggrieved from the order dated 29.11.2004, the petitioner has preferred this writ petition. 3. It is contended by learned counsel for the petitioner that (I) the petitioner is a Pardanashin lady and comes from highly respectable family of district Bareilly and her husband i.e. Vinod Khandelwal always remains busy and out of his house with regard to the business and on account of the fact that the petitioner is a pardanashin lady it was very difficult for her to go out of the house in order to attend the court, without the help of any male person and there is no male person in the house of the petitioner except the husband of the petitioner. (II) it was not at all necessary for the petitioner to be present personally in the court during the trial. (III) the presence of the petitioner may be accounted through her counsel during the pendency of the trial in the court below. (IV) the order dated 28.8.2004 passed by the learned Magistrate is totally against the law and the facts on record. (V) the learned Magistrate has erred in passing the impugned order dated 28.8.2004. (VI) the learned Magistrate while passing the order dated 28.8.2004 has committed material irregularity and illegality in exercising its jurisdiction and has failed to exercise its jurisdiction vested in it. (VII) in any case order dated 28.8.2004 is not sustainable and is liable to be set aside. (V) the learned Magistrate has erred in passing the impugned order dated 28.8.2004. (VI) the learned Magistrate while passing the order dated 28.8.2004 has committed material irregularity and illegality in exercising its jurisdiction and has failed to exercise its jurisdiction vested in it. (VII) in any case order dated 28.8.2004 is not sustainable and is liable to be set aside. (VIII) the learned Lower Revisional Court has also erred on fact and also on law while dismissing the revision and has committed grave illegality and irregularity in passing the same as such the order dated 29.11.2004 passed by the Additional Sessions Judge Fast Track Court No. 2 Bareilly is also liable to be set aside. (IX) both the courts below have not considered the fact on record and have totally overlooked those facts at the time of passing the orders against the petitioner. (X) both the courts below have passed the orders in seer mechanical way without applying its judicial mind. (XI) it is not necessary under law for disposal of the claim of discharge regarding the personal appearance of accused but the learned courts below have not considered this fact at the time of passing the orders under consideration. (XII) the presence of the petitioner is not at all required during the trial and she may be represented by her counsel. (XIII) if the orders under consideration is not set aside or quashed it would cause an irreparable loss and injury to the petitioner. 4. In support of the submission made by learned counsel for the petitioner, the following cases have been cited : 1- 1998(2)A.Cr.R.1193-Hafeez Ullah Khan Vs. Spl.C.J.M.Allahabad and another. 2- 2002 CRI.L.J.4751 -Darasi House of Publications Pvt. Ltd. vs. M/s Apple Credit Corporation Ltd., Secunderabad and another. 3- 2003 Cr.L.J 3774-Debasis Samantaray vs. State of Orissa . 4- 2001 AIR (SC) 3625 Bhaskar Industries Limited vs. Bhiwani Denim and Apparels Limited 5- 1995 Cr.L.J. 224- Kaveri Alias Benga vs. State. 5. Spl.C.J.M.Allahabad and another. 2- 2002 CRI.L.J.4751 -Darasi House of Publications Pvt. Ltd. vs. M/s Apple Credit Corporation Ltd., Secunderabad and another. 3- 2003 Cr.L.J 3774-Debasis Samantaray vs. State of Orissa . 4- 2001 AIR (SC) 3625 Bhaskar Industries Limited vs. Bhiwani Denim and Apparels Limited 5- 1995 Cr.L.J. 224- Kaveri Alias Benga vs. State. 5. In reply of the above contention it is submitted by learned A.G.A.and learned counsel for O.P.No.2 that on the basis of the complaint filed by O.P.No.2, the learned Magistrate concerned has taken the cognizance by holding that prima facie offence under section 138 N.I.Act is made out and the petitioner has been summoned to face the trial, but in pursuance of such order the petitioner did not appear before the court concerned, consequently the bailable warrant has been issued, even then she did not appear before the court concerned then Non Bailable warrant was issued against the petitioner to ensure her appearance before the court concerned. The application under section 205 Cr.P.C.has been filed without appearing before the court concerned with a prayer that appearance of the petitioner may be permitted through counsel. The application under section 205 Cr.P.C.moved by the petitioner before the court concerned that petitioner wanted to submit objection for the purpose of claiming the discharge and petitioner was housewife, she remains at home and her husband remains busy in his business work. As per the tradition in the family of the petitioner the ladies of the family does not go outside the house alone. The ladies used to go outside the house along with some male family member and it was very difficult for the petitioner to appear personally before the court on each and every date. The claim for discharge yet to be decided but the learned Magistrate concerned after considering the grounds taken therein rejected the application under section 205 Cr.P.C.by holding that without appearance before the court concerned the personal appearance under section 205 Cr.P.C. may not be exempted. 6. Learned revisional court has also rejected revision filed by the petitioner by holding that since the petitioner has not appeared personally before the court concerned whereas his personal appearance was necessary, the exemption for personal appearance on subsequent dates may be granted. 6. Learned revisional court has also rejected revision filed by the petitioner by holding that since the petitioner has not appeared personally before the court concerned whereas his personal appearance was necessary, the exemption for personal appearance on subsequent dates may be granted. In case the accused petitioner had appeared personally prior to that no proper reason has been shown in the application moved under section 205 Cr.P.C.to show that personal appearance was either not possible or it was difficult, in such circumstances, the learned Judicial Magistrate-Ist has not committed any error in rejecting the application under section 205 Cr.P.C.vide order dated 28.8.2004 and the revisional court has also not committed any error in dismissing the criminal revision No. 311 of 2004 vide order dated 29.11.2004. The present writ petition is devoid of the merits, the same may be dismissed. 7. Considering the submission made by counsel for the petitioner, learned A.G.A., counsel for the O.P.No.2 and from the perusal of record it appears that in the present case, the petitioner has been summoned by the court of learned Magistrate concerned by the court of learned Magistrate concerned for the offence punishable under section 138 N.I.Act on the complaint filed by O.P.No.2. In pursuance of the summoning order the petitioner did not appear in the court concerned, she moved the application under section 205 Cr.P.C.that her personal appearance may be permitted through her counsel. The ground taken therein is that petitioner wanted to file objection claiming the discharge, the petitioner was housewife, according to the family tradition she was not permitted to go outside the house alone and her husband was engaged in his business. The issue involved in the present case is whether as a matter of right by moving the application under section 205 Cr.P.C., the appearance of the accused may be treated through counsel and the next issue involved is whether without appearing before the court, without physical appearance of the accused in the court concerned in pursuance of the summoning order, the personal appearance may be exempted and the same may be permitted through counsel. 8. To deal with above mentioned issues, the consideration of the provision of section 205 Cr.P.C.is necessarily required. The section 205 Cr.P.C.reads as under : 205. 8. To deal with above mentioned issues, the consideration of the provision of section 205 Cr.P.C.is necessarily required. The section 205 Cr.P.C.reads as under : 205. Magistrate may dispense with personal attendance of accused.- (1) 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 herein before provided. 9. The provision of section 205(1) empowers the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his pleader, if he sees reason to do so. 10. In the present case no proper reason has been shown to dispense with the personal attendance of the petitioner and to permit her to appear by her pleader. The provision of Section 205 Cr.P.C.empowers the Magistrate concerned to exercise his discretion for dispensing with the personal attendance of the accused if he sees reasons to do so and at any stage of proceedings as of inquiry of trial the Magistrate concerned may direct the personal attendance of the accused, in case prior to that personal attendance of the accused was dispensed with. In the present case, the reasons shown by the petitioner to dispense with personal attendance were not proper, learned Magistrate concerned did not exercise his discretion to dispense with her personal attendance, the discretion of the court may not be treated as right of the accused for getting dispensation in personal attendance. The Magistrate concerned has not committed any error in issuing the bailable and non bailable warrant against the petitioner. The revisional court has also not committed any error in dismissing the revision filed by the petitioner. The impugned judgment and order dated 28.8.2004 passed by Judicial Magistrate I, Bareilly and judgment and order dated 29.11.2004 passed by learned Additional Sessions Judge, FTC No.2 Bareilly in Criminal Revision No. 311 of 2004 are not suffering from any illegality or irregularity, the prayer for quashing the same is refused. 11. The interim order dated 5.1.2006 is hereby vacated. 12. 11. The interim order dated 5.1.2006 is hereby vacated. 12. However, considering the facts and circumstances of the case it is directed that petitioner may appear before the court concerned within a month from today and for a period of one month, bailable and non-bailable warrants issued by learned Magistrate concerned shall be kept in abeyance. On appearance of the petitioner before the court concerned, the court concerned shall proceed further in accordance with law. 13. With the above direction, this petition is finally disposed of.