1. This order governs two references made by the Sessions Judge, Bhopal in two criminal cases, which have been registered in this court as Criminal Revisions Nos. 21 and 22 of 1955. Criminal Revision No. 21 of 1955 arises out of the criminal case instituted by Desouza against Shrimati Aijaz Masih and other Criminal Revision No. 22 of 1955 arises out of criminal case instituted by the same Desouza against Kumari Sheela and others.
2. The women accused of in two cases did not appear in the trial court after the service of summonses on them but moved applications for exemption from personal attendance. These applications were dismissed. They went up in revision before the Sessions Judge, Bhopal who has made a reference to this Court for quashing the order of the learned Magistrate. The recommendation being (sic) made by the Sessions Judge has not been clearly indicated but what I gather from the opinion expressed by him in that according to him, the women accused should have been exempted from personal attendance.
3. The learned Counsel for the applicants strongly urged that the interpretation given to Section 205 (1), Criminal P.C. by the learned Magistrate is not correct and, in any case, is contrary to an earlier decision of this Court. In view of the fact that I am reconsidering this question which is of great importance to the litigant public and would lay down instructions for the guidance of the Magistrates how to properly exercise their discretion in cases in which all or some of the accused belong to the female sex, it is not necessary to decide these references with special reference to the earlier decision of this Court.
4. The members of the Bar do feel considerable difficulty in bringing the decisions of this Court to the notice of the Subordinate Courts, in view of the fact that in Bhooal the rulings of this Court are not reported in any official publication nor is there any approved report. The AIR does report certain decided cases of this Court but apparently they cannot be many.
In these circumstances the Bar is considerably handicapped in referring the decisions of this Court in cases pending before the Subordinate Court. The Subordinate Courts also, labour under similar difficulties. Consequently it cannot be said that the learned Magistrate had disregarded an earlier decision of this Court unless of course a certified copy of the order or judgment was produced before him.
But it would have been proper if the learned Magistrate had postponed the passing of the order and meanwhile obtained a copy of the judgment from the Library of this Court or directed the party placing reliance upon the judgment to file a certified copy thereof. Such a precaution is necessary to ensure that the decisions of this Court, which are binding on all the Courts subordinate thereto, are not disregarded.
5. The personal attendance of an accused person can be dispensed with either under Section 205 Criminal P.C. or under Section 540A, Criminal P.C. Sub-clause 1 of Section 205 governs the discretion to be exercised at the time of the issue of summonses; while Section 540A, Criminal P.C. to the exercise of discretion while trial or inquiry is pending.
It appears to me that the learned Magistrate felt handicapped in allowing the present applications for exemption from personal attendance of the women accused on the ground that no such exemption was granted at the time of the issue of summonses. It is true that if sub-clause 1 of Section 205 is strictly construed the view taken by the learned Magistrate cannot be said to be incorrect.
But the Courts of law cannot and should not overlook the local customs and the outlook of the public howsoever backward it may be. I am told that in Bhopal State as in other parts of the Country 'purdanashin' ladies avoid coming out of their houses, specially to public places like Courts of law. I am also told that the people in Bhopal State are rather backward and they ex-communicate the women if they go to public places like Courts of law.
Presuming that such a practice prevails in the Bhopal State it is all the more necessary that the Courts of law should exercise their discretion carefully from the very initial stage so that a prosecution may not amount to persecution and may not result in ex-communication of the women from the 'biradari' for no fault of theirs. This precaution is all the more necessary as very often complainants add the names of a few women in the array of accused so that undue pressure may be put upon the men accused to compromise the case or to come to terms with the complainant in other matters also which they would not do otherwise.
If the complainant appears to adopt such tactics the Magistrates should be careful from the Initial stage of the trial to safeguard the interest of the women accused. In other words, therefore, where the offences charged are not of a heinous type and are of a petty nature, in which a nominal sentence would, if established, be awarded, they may consider the advisability of dispensing with the attendance of the women accused at the very time the summonses are issued.
Once the discretion is properly exercised there is not reason why the 'purdanashin' and other women of Bhopal State would be put to any unnecessary inconvenience.
6. If, however, summonses have already been issued and the accused persons have to put in personal appearance before the Court, the Magistrates can exercise their discretion even at this stage to ensure that the women are not unnecessarily harassed or put to inconvenience. If an application for dispensing with the personal attendance is moved at this stage, the Magistrates, can, in exercise of their inherent power, dispense with the personal attendance of the accused persons provided that they are satisfled that the application has been moved by or on behalf of the correct accused persons.
In such a case it would not be necessary for the women accused to appear before the Court on the first date of hearing. But if there is any doubt in the mind of the Court or if the Court is satisfied that the application has not been moved by or on behalf of the accused persons, the attendance on the first date of hearing can be ordered. I would repeat that while exercising the discretion the Magistrate should keep in mind the outlook and customs prevalent among the people of Bhopal.
7. The exemption from personal attendance of 'purdanashin' ladies or women accused as a whole can be granted at subsequent stages on almost the same principles, though not strictly under Section 540A, Criminal P.C. I well realise that in certain circumstances it may be necessary for the Magistrate to direct the personal attendance of women accused.
The first stage would arise in only limited cases where women are not known to the witnesses by name and it may be necessary to put them up for identification either in a formal parda or while the case is being heard. Before ordering the personal attendance the Magistrates should satisfy themselves if the plea raised by the complainant is bona fide or not.
In case there exist reasonable grounds to order for the personal attendance of the women accused so that they may be pointed out or identified by the various witnesses, the recording of the evidence can be so arranged that the women accused do not have to attend the Court on more than one day. In petty cases the personal attendance of the accused at the time of their examination may not be necessary but where it is considered proper that the accused persons should themselves be examined they can be asked to appear in Court on that date.
The third stage of personal attendance would arise at the time of the pronouncement of the judgment. The law itself lays down that personal attendance of an accused is not necessary where only a fine is being imposed or he is being acquitted (See Section 366 (2), Criminal Procedure Code). Thus, it would be only in cases where the women accused are being sentenced to imprisonment that their attendance would be necessary at the time of the pronouncement of the judgment.
8. For reasons given above, the two references are hereby rejected but the learned Magistrate should reconsider the matter on the lines indicated above if a fresh application is moved for dispensing with the personal attendance of the women accused.
9. A copy of this order be placed on the file of Criminal Revision No. 22 of 1955.