1. This is a reference by the Sessions Judge, Indore under Section 438, Criminal P.C. The short facts which have given rise to this reference are as follows : His Highness the Raja of Sailana Shree Dilipsinghji filed a complaint under Section 500, Penal Code, against Shree Motilal Potdar, Shree Purshottam Vijaya, Shree Krishnakant Vyas and Shree C.M. Shah in the Court of the Additional District Magistrate, Indore. Along with the complaint Shree Dilipsinghji also filed an application stating that the complainant was the ruling chief of Sailana State before the merger of the State into Madhya Bharat, and as such his privileges have been guaranteed under Article 13 of the Covenant; the complainant therefore should be exempted from personal attendance in Court. This application was granted by the Court 'ex parte'. On 14.7.1951 the accused as summoned presented themselves in Court. Purshottam Vijaya accused 2 submitted an application and contended that according to, law the claim of the complainant for exemps tion from personal appearance cannot be accepted. The learned Additional District Magistrate heard the arguments of both the parties and held that the contention raised on behalf of Purshottam Vijaya could not be upheld. Against that order the accused filed a revision before the Sessions Judge, Indore who being of the opinion that the order of the learned Magistrate was illegal has made this reference.
2. Before proceeding to determine the question whether the complainant is entitled to the privilege of exemption from personal attendance in Court it is necessary to examine the' position of law in respect of attendance in, general. Under Section 259, Criminal P.C. it is specifically laid down that when the proceedings have been instituted upon complaint and upon any day fixed for the hearing of the case the complainant is absent, the Magistrate may, in his discretion discharge the accused at any time before the charge has been framed provided the offence is compoundable or is non-cognizable. In summons cases Section 247, Criminal P.C. provides that when summons has been issued on complaint, and upon the day appointed for the appearance of the accused, the complainant does not appear the Magistrate shall acquit the accused, unless for some reason he thinks proper to adjourn the hearing. Appearance of the complainant contemplated both under Sections 259 and 247 is personal appearance. The presence of the complainant's pleader is not enough to avoid the consequences specified under both these sections vide - Piraglal v. Rustamsingh AIR 1936 All 658 (A) and - Tonkya v. Jagannatha AIR 1926 Mad 1009 (B). Section 198, Criminal P.C. lays down that no Court shall take cognizance of an offence falling under Chap. 19 or Chap. 21, Penal Code or under Sections 493 to 496 of the same Code except upon a complaint made by some person aggrieved by such offence. The said section makes exception only in the case of pardanashin women and persons under the age of 18 years and persons who are lunatic or idiots or who are from f sickness or infirmity unable to make a complaint. The complaint filed in this case is under Chap. 21, Penal Code. Consequently the complaint must be filed by a person aggrieved by such offence, unless the person is covered by any of the exceptions given in section 198. All these sections point only to one conclusion and that is that the complainant must be present in Court in person.
3. The complainant in his application dated 31.1.1951 states that under Article 13 of the Covenant all his privileges as a ruler have K been safeguarded and consequently he should be given an exemption from personal attendance in Court. Article 13 it self does not specify what privileges have been guaranteed under the said Article. Article 13 of the Covenant reads as follows:
The Ruler of each covenanting State, as als3 the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.
The Article only states in general that the rulers and the members of their family shall foe entitled to all the personal privileges, dignities and titles enjoyed by them whether within or without the territories of their respective States immediately before the 15th day of August, 1947. There must be, therefore, some evidence to show what personal privileges the complainant enjoyed both within and without the territory of Sailana State. No evidence was produced by the complainant before the arguments of the parties were heard. It appears from the record that the arguments were heard on 23.7.1951. On 31.7.1951 one Madanlal filed an affidavit stating that he was a Shirstedar of the Diwan of Sailana and afterwards household officer and that in Sailana State His Highness was exempted from personal attendance in Court. It does not appear that an opportunity was given to the opposite party to produce any evidence, in rebuttal. Yet the learned Magistrate relied upon the affidavit in passing the order. This course followed by the learned Magistrate was improper. However, the affidavit only states that the complainant had a personal privilege of exemption from personal attendance in all the Courts in Sailana. Madanlal who was only a household officer is not likely to know the exact nature of the privileges enjoyed by the complainant. Even if it be conceded that he had this knowledge, he only states that the complainant had this privilege in the Courts of Sailana State. There is no evidence to show that even as a complainant the ruler of Sailana had the privilege of exemption from personal attendance in Court. In any case there is no evidence to support his claim for exemption outside Sailana State.
4. Even if it be postulated that the Ruler of Sailana enjoyed the privilege of exemption from personal attendance in Courts outside Sailana State even as a complainant, we have to see if such a privilege can be claimed now. Article 13 of the Covenant safeguards the privileges enjoyed by the rulers before 15.8.1947. The Covenant is' an agreement between the rulers of Gwalior, Indore and certain other States in Central India, The Government of India gave its concurrence and guarantee to this Covenant. But this Covenant is only an agreement and not a statute. In - Shree Ram Dube v. The State AIR 1952 Madh B 57 (FB)(C), Dixit J, at page 76 observed as follows:
The Covenant is not a statute. It is as its name implies a compact between - the signatories to the Covenant, the object of which is to secure the welfare of the people of the region by the establishment of a new State comprising the territories of the Covenanting States with a common Executive, Legislature and Judiciary.
Consequently unless this agreement is cloaked in the garb of law by the legislature it cannot be given effect to. The function of the Judiciary is to interpret the law and to enforce the due observance of it. Unless and until, therefore, the agreement is elevated to the status of law by the legislature Courts cannot enforce the observance of it. With a view to give effect to this agreement the framers of the constitution included Article 362 in the Constitution. Article 362 lays down as follows:
In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such Covenant or agreement as is referred to in Clause (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.
In pursuance of the power given by Article 362 Parliament incorporated Section 197(a) in the Criminal Procedure Code. By this section the prosecution of rulers of former Indian States is inhibited except with the previous sanction of the Central Government. By the same section provisions of Sub-section (2) of Section 197 are also made applicable to the Rulers of former Indian States. But no other privileges has been provided for by legislation. It follows, therefore, that the privilege of exemption from personal attendance in Court as a complainant, has not been provided for by the law. No such exemption, therefore, can be legally granted to the complainant. In my judgment, therefore, the order of the learned Additional District Magistrate was clearly wrong.
5. I, therefore, accept the reference and set aside the order of exemption from personal attendance granted to the complainant by the trial Court.