D.S. Dave, J.
1. This reference comes on the report of the learned Sessions Judge, Jodhpur dated 23-7-1957.
2. The facts giving rise to it are that in a criminal case No. 371 of 1956 (State v. Salehraj offence under Section 325 I. P. C.) pending in the Court of the City Magistrate, Jodhpur, one Mst, Man Kanwar has been cited by the prosecution as a witness. On 30-4-1957 the Prosecuting Sub-Inspector moved an application in the trial court saying that Smt. Man Kanwar was a 'pardahna-shin' lady and therefore a commission should be issued for her examination.
This application was turned down by the court with the remark that the witness could come to the court with a 'pardah' and the court would see that the court room would be closed and only the parties and counsel would be allowed to remain there at the time of her examina-tion. Being dissatisfied with this order Mst. Man Kanwar filed a revision application in the court of the learned Sessions Judge.
The learned Judge has remarked that enforced appearance of the petitioner in the court would entail forfeiture of her dignity and position in the society. He has therefore recommended that the order of the Magistrate should be set aside and the petitioner's request for being examined on commission should be accepted.
3. Neither party has cared to appear in this Court.
4. I have gone through the order of the learned Sessions Judge and find that except. mentioning that the petitioner is a 'pardahna-shin' lady, he has said nothing about her age or status in the society nor has he mentioned any circumstances to show that it would be inconvenient for her to appear in the court as a witness. He has no doubt made a general remark that her enforced appearance would entail forfeiture of her dignity and position in the society; but it does not appear from his report on what basis this observation is based.
5. It may be observed that the general principle of the criminal law is that every witness must be produced at the trial to give evidence in open court unless the attendance of such a witness cannot be procured without any-amount of delay, expense or Inconvenience, Section 503 which deals with the issue of commission for the examination of witnesses runs as follows :
'Whenever, in the course of an enquiry, trial or other proceeding under this Code, it appears-to a High Court, Court of Session (or any Magistrate) that the examination of a witness is. necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter.'
6. It would appear from the language of the section that the court is permitted to dispense with the attendance of a witness and to issue a commission for his or her examination. only when the court finds that the examination of that witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience.
There is no clear provision in the Code which says that the 'pardahnashin' ladies are as of right exempted from appearance in a criminal court. It is true that in certain cases some courts-have dispensed with the personal appearance of 'pardahnashin' ladies on the ground that it would cause them inconvenience.
But such instances are very rare and most of them pertain to a period when 'pardah' was very rigidly observed in this country. Even as early as in 1889 it was observed in the matter of the petition of Basant Bibi ILR 12 All 69 (A) that 'it would be weakness to surrender as a general principle to be adopted in all cases of this description that 'Pardahnashin' ladies whose evidence is required in criminal trials are to be allowed to compel the Court to examined them at some other place man the Court house itself.'
In that particular case it was'found by the learned Judges that Mst. Basant Bibi was a 'pardahnashin' lady and she objected to mixing in a promiscuous crowd of persons or to being brought in contact with undesirable persons who frequent criminal Courts, The Magistrate was therefore directed that if it became imperatively necessary to take her evidence he should make arrangements to take her evidence either in an empty court room in the presence of himself, the accused and his pleader and the pleader for the prosecution, if there be any, or if no empty court room be available, in his own private room or some other room in the court building'.
It is clear from the impugned order of the Magistrate that he is already prepared to examine the petitioner almost in the same manner as was laid down in the above case even though a long period has passed since the said case was decided by the Allahabad High Court and the purdah system has undergone a consider-able change. Learned Sessions Judge has not pointed out what inconvenience would be felt by Mst. Man Kanwar in spite of all the facilities which the Magistrate is prepared to provide her with. Even if the witness is permitted to be examined on commission, the prosecutor, the accused and his counsel would have to be present.
The only difference would be that instead of the Magistrate, the person who is appointed to examine her would be another person and the place where she is examined would be another building instead of the building where the court is housed. Learned Sessions Judge has remarked that the very attendance of the witness In the court building would 'entail the forfeiture of her dignity'. It would suffice to say that the notion that an attendance of a person in a court of law as a witness is in any way derogatory to one's dignity is very wrong, and the sooner it is dispelled, the better.
There was a time when special dignity was attached to Purdah, because the rulers of the States whether they were Rajas or Nawabs used to observe it and their subjects also used to imitate them. Purdah is fast disappearing now even in those high quarters from where it had emanated and Purdahnashin ladies are no longer looked upon more dignified in comparison to those who do not observe the purdah. I do not in the least mean to disregard the sentiments of those ladies who still observe Purdah.
I only mean that I do not agree with the learned Sessions Judge's view that the very attendance of a pudahnashin lady in the court building as a witness entails the forfeiture of her dignity in any manner. It is hoped that the Magistrate will examine the petitioner either in his chamber or in the Court-room in the manner indicated by him so that the witness may still be able to observe her Purdah from those whose attendance in the court is not necessary.
7. I do not see good grounds to interefere with the order of the Magistrate.
8. The reference is rejected.