1. Sarnagat Singh filed a complaint at, Delhi under Sections 498, 379 and 109, Penal Code against his wife Mohindar Kaur, Kewal Kishan and the letter's sister Kumari Indra Devi alleging that Kewal Kishan and Kumari Indra Devi had enticed away his wife, who had taken away with her some property belonging to him. After recording the preliminary evidence the learned Magistrate, who dealt with the complaint found that the charge of theft was not substantiated and ordered the issue of warrants bailable in a sum of Rs. 500/- against Kewal Kishan and Kumari Indra Devi for their appearance as accused under Section 498, Penal Code and at the same time ordered the issue of a warrant of arrest against Mohindar Kaur, presumably for her appearance as a witness, though this was not stated in the order, which also omitted to specify the nature of the warrant to be issued,
On behalf of Kumari Indra Devi an application was filed in the court of the learned Magistrate for her exemption from personal appearance as an accused in the case on the grounds that she was a respectable young lady of about 20 employed as the Head Mistress of a Girls School at Gurdaspur and was unfit to undertake the journey to Delhi, and moreover she had been falsely implicated in the case merely to put pressure on her brother. No section of the Criminal Procedure Code under which her exemption from personal appearance was claimed was mentioned in the application, but the learned Magistrate in his order treated it as being under Section 540A, Criminal P. C. and rejected it as without justification.
Kumari Indra Devi has accordingly filed an application in this Court under Section 561A, Criminal P. C. for quashing the proceedings against her or in the alternative for her exemption from personal appearance, and also a revision petition was filed on behalf of Mohindar Kaur in the Court of the Sessions Judge at Delhi [or setting aside the order of the learned Magistrate for the issue of a warrant of arrest against her. This petition was dealt with by the learned Additional Sessions Judge who has forwarded it to this Court with the recommendation that the order being illegal should be set aside.
2. On behalf of Kumari Indra Devi in support of her petition for quashing the proceedings against her reliance is placed on a certificate by a Magistrate of Gurdaspur to the effect that he had seen the register of the school in which she is employed, from which it would appear that she was not absent from duty during the relevant period. It is, however, obviously impossible at this stage to estimate the strength of any alibi which Kumari Indra Devi may be able to produce in her defence in the case against her, nor is it possible at this stage to estimate the strength of the prosecution evidence which may be produced against her and I do not consider that sufficient grounds have been shown for quashing the proceedings against her in the case.
As regards her personal appearance the only provision of the Criminal Procedure Code under which the personal attendance of an accused person in a Criminal case can be dispensed with are contained in Section 205 and Section 540A. Prom the Words of Section 205 it is clear that the personal attendance of the accused can only be dispensed with where a summons for his appearance is issued in the first instance, whereas in the present case a warrant has been issued, which is in accordance with the provisions of the second schedule to the Code, according to which a warrant shall ordinarily issue in the first instance in a case under Section 498, Penal Code.
The relevant portion of Section 540A reads: 'At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence. ** ** **'.
This section would also appear to be inapplicable in the present case since clearly it contemplates the continuance of an enquiry or trial in the absence of an accused where the accused in question has been appearing before the Court and has become incapable for some reason or other of continuing to appear. The section certainly would not apply to the case of an accused applying to be exempted from personal appearance without ever having appeared, and only in the case of an accused, who has already been appearing for very good reasons.
Kumari Indra Devi had sent a certificate from a private practitioner to the Court which was to the effect that she was unable to undertake the journey to Delhi and to appear before a court at Delhi for one month from the date of the certificate, which was 5-6-1048. It would appear, however, that in the absence of any evidence to show that Kumari Indra Devi had had to take sick leave and was unable to attend to her duties there was no good reason why she should not appear in the Court at Delhi, and I do not consider that she would be entitled to be exempted from appearance on social grounds, since I do not think that a member of the teaching profession can be regarded as Pardanashin lady. The learned counsel for the petitioner cited 'In re, Ummal Hasanath', AIR 1947 Mad 433 (A) which relates to a case in which a pardanashin Muslim lady belonging to a respectable family in a poor state or health had been arrested by the police without a warrant in a case under Section 302. Penal Code and remanded to the Judicial lock-up for a period. An application made by her to the Magistrate for exemption from personal appearance as an accused was rejected on the grounds that the Magistrate had no jurisdiction to grant the application and that the accused might be required for identification. She filed a revision in the High Court.
Rajamannar J. held that the case was not covered by Section 205, Criminal P. C. since no summons had been issued by a Magistrate, but he was of the opinion that Section 353, Criminal P. C., by necessary implication conferred power on the presiding Officer of any criminal Court to dispense with the personal attendance of an accused. He was also of the opinion that the language of Section 561A, Criminal P. C., was wide enough to confer such power on the High Court. With due deference I do not agree with his view on either of these points, since in the first place there are specific provisions in the Criminal Procedure Code for dispensing with the personal attendance of accused persons and such being, the case I do not think Section 561A ought to be applied and as regards Section 353 all it says is--
'Except as otherwise expressly provided, all evidence taken under Chap. 18, 20, 21, 22 and 23 shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.'
I do not consider that this section in itself empowers a Court to record evidence in the absence of an accused person except when his presence has been dispensed with under the other relevant provisions of the Code, namely, Sections 205 and 540A. I thus consider that the order of the learned Magistrate refusing Kumari Indra Devi's application to be excused from personal appearance was quite legal and dismiss her application, but at the same time may add that the fact that she has to travel from Gurdaspur to Delhi to appear in the case may be borne in mind if the case against her is found to be false and she is discharged.
3. As regards the petition of Mohindar Kaur the provisions relating to the issue of a warrant of arrest for a person required to appear as a witness in the case are contained in Section 90 of the Code which reads:
'A court may, in any case in which it is empowered by this code to issue a summons for the appearance of any person other than a juror or assessor, issue, after recording its reasons in writing, a warrant for his arrest,
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the
Summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered
for such failure.'
It does not appear that either of those conditions was fulfilled in the present case and the order for the issue of a warrant against Mohindar Kaur was recorded without giving any reasons under Clause (a) and without having first issued a summons for her appearance in answer to which she had failed to appear. The order is, therefore, clearly illegal and I do not see much force in the argument of the learned counsel for the respondent who cited a number of authorities to the effect that the omission to record reasons in writing for such an order was a mere irregularity which did not vitiats the trial, since in this case the trial is still in its preliminary stages & there is no reason why the irregularity should not be corrected at this stage. The order must, therefore, be set aside and the issue of a warrant against Mohindar Kaur only ordered either if reasons are given in writing under Section 90 (a) or under Clause (b) after she has failed to appear in response to a summons duly served on her.