Smt. Sita Kumari v. Lalit Kumar And Another

1. Both these applications relate to Criminal Misc. Application No. 7226 of 1989 and contain the prayer for setting aside the order dated 3rd August, 1989 passed in Criminal Misc. Application No. 7226 of 1989 directing opposite party No. 1, Lalit Kumar, his brothers, Jagdish Prasad and Audesh, Smt. Bhagwan Dei wife of Audesh, Smt. Raja wife of Jagdish Prasad and Ramji Lal to appear before the Magistrate concerned through counsel and further directing that they shall not be compelled to appear in person unless they are required for their statements or for judgment or if their counsel withdraws.

2. Facts giving rise to the present application are that on 26th July, 1977, Smt. Sita Kumari was married with Lalit Kumar before the Marriage Officer under Special, Marriage Act. Wedlock was blessed with a son. But unfortunately their relations became estranged and they have been living separately. Smt. Sita Kumari has been working at a Health Centre and living in District Saharanpur. Lalit Kumar, his brothers and sister-in-law have been living in District Agra. Ramji Lal is a resident of a village in Firozabad which is now an independent district. Smt. Sita Kumari filed criminal complaint against, Lalit Kumari, his brothers and sisters-in-law and Ramji Lal for offences under Sections, 498-A/406/109, I.P.C Learned Magistrate, seized of her complain, summoned Lalit Kumar, his brothers and sisters-in-law and Ramji Lal and directed issue of summons as to them under Section 204(1)(b), Cr. P.C Lalit Kumar, his brothers, his sisters-in-law and Ramji Lal filed petition under Section 482, Cr. P.C for quashing the entire proceedings in complaint case filed by Smt. Sita Kumari. After hearing their counsel at the admission: stage and in absence of Smt. Sita Kumari this court disposed of their petition inter alia with; above direction.

3. Now Smt. Sita Kumari has filed these I two applications against Lalit Kumar and State of U.P only. Her contentions are that the direction permitting Lalit Kumar and others to appear through counsel was issued without, notice to her and that in the petition under. Section 482, Cr. P.C it was suppressed that the Magistrate had already issued non-bailable warrants for appearance of the accused of the case. It has been vehemently urged that only the Magistrate could have exempted personal attendance of the accused and this court had no jurisdiction to exempt their persoanl attendance. It has been asserted on behalf of Smt. Sita Kumari that exemption of personal attendance before the Magistrate has given a privilege to the accused and they will never appear before the Magistrate.

4. Parties have been heard. After issue of summons or warrant under Section 204, Cr. P.C the accused has to appear for further enquiry and evidence under Section 244, Cr. P.C He can be examined by the court at any stage, under Section 313, Cr. P.C If after the evidence under Section 244, Cr. P.C prima facie case against the accused is found, charge. has to be framed and accused has to appear personally for answering the charge. But so long as the evidence under Section 244, Cr. P.C is not completed and charge is not framed or unless the Magistrate sets out to record the statement of the accused under Section 313, Cr. P.C personal attendance of the accused is not necessary for further proceedings. While exempting personal attendance of the accused, this court was careful in observing that their personal attendance would be compelled for their statement or at the time of judgment. It may, now be further mentioned that if charge or charges are framed against the accused, the Magistrate shall be at liberty to compel their attendance.

5. But so long as the charges are not framed or the accused is not required for statement under Section 313, Cr. P.C the complainant has no vested right in personal attendance of the accused. Section 205(1), Cr. P.C authorizes the Magistrate issuing summons, if he sees reason to dispense with the personal attendance of the accused and permit him to appear by his pleader. Exercise of power of the Magistrate under Section 205(1), Cr. P.C is a matter between the Magistrate and the accused. For determining whether personal attendance of accused should be dispensed with and he should be permitted to appear by his pleader, the Magistrate has to reasonably use his discretion after due consideration of all the attending circumstances including social status, customs and practice of the accused and the necessity of personal presence having regard to the nature of offence and stage of the trial. This discretion should ordinarily be exercised liberally. Magistrates in U.P should not overlook that they have large number of cases in their courts and if they require all the parties to the cases before them to appear personally, the court rooms and Verandahs in front of, court rooms shall remain over packed blocking even the passage of the lawyers to enable them to appear at the Bar.

6. Under Section 482, Cr. P.C High Court has inherent powers to exempt personal appearance of the accused before the Magistrate until personal attendance of the accused is necessary for enquiry or trial. Under Section 483, Cr. P.C High Court in its superintending powers over the courts of Judicial Magistrates subordinate to it can issue directions for expeditious and proper disposal of cases. If the High Court being conscious of the overcrowding in the courts of the Magistrate decides to exempt personal attendance of the accused till their attendance is required for their statements or judgment it cannot be said that the High Court has no jurisdiction to issue such direction.

7. It was vehemently urged on behalf of Smt. Sita Kumari that the Magistrate had already issued warrants and this fact having been suppressed in the petition under Section 482, Cr. P.C the High Court could not have exercised jurisdiction to exempt personal attendance of the accused before the Magistrate. As pointed out above in the present circumstance prevailing in the courts of Magistrate in U.P want of exercise of jurisdiction under Section 205(1), Cr. P.C at the initial stage of issuing summons gave ample jurisdiction to the High Court to exempt personal attendance of the accused and the fact that subsequently after issue of summons the Magistrate issued warrant paled into insignificance.

8. Having considered all the circumstances of the case. I hold that the order dated 3rd August, 1989 passed by this Court does not require substantial change. Applications under consideration are disposed of with further observation that in case the Magistrate frames charge or charges against Lalit Kumar or any of the accused, he shall be at liberty to compel personal attendance: of the accused for answering the charge. Stay order is vacated.

9. Order accordingly.