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R. Chockalingam Vs. Sundari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1966)2MLJ327
AppellantR. Chockalingam
RespondentSundari
Excerpt:
- - provided that if the magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the court, the magistrate may proceed to hear and determine the case ex parte. any orders so made may be set aside for good cause shown on application made within three months from the date thereof......in m.c. no. 334 of 1965 instituted under section 488, criminal procedure code, before the learned district magistrate of ramanathapuram by one sundari against one chockalingam. sundari has alleged in her petition that chockalingam married her, and she claims maintenance for herself and her child. chockalingam appeared before the court and filed an application m.p. no. 863 of 1965 stating that, for the reasons mentioned in his petition, the court might be pleased to dispense with his personal attendance and to permit him to appear by a pleader. he submitted that the action was in the nature of a blackmail but we are not now concerned with it. he pointed out that he was district superintendent of police, kottayam district in kerala state, and that,, because of his official duties,.....
Judgment:
ORDER

K.S. Venkataraman, J.

1. This revision petition filed under Section 439, Criminal Procedure Code A.I.es out of proceedings in M.C. No. 334 of 1965 instituted under Section 488, Criminal Procedure Code, before the learned District Magistrate of Ramanathapuram by one Sundari against one Chockalingam. Sundari has alleged in her petition that Chockalingam married her, and she claims maintenance for herself and her child. Chockalingam appeared before the Court and filed an application M.P. No. 863 of 1965 stating that, for the reasons mentioned in his petition, the Court might be pleased to dispense with his personal attendance and to permit him to appear by a Pleader. He submitted that the action was in the nature of a blackmail but we are not now concerned with it. He pointed out that he was District Superintendent of Police, Kottayam District in Kerala State, and that,, because of his official duties, it would not be possible for him to attend the Court of the District Magistrate at Devakottai for all the hearings. Sundari filed a memorandum of objection stating that the presence of Chockalingam was necessary since her witnesses had to identify him. The learned District Magistrate has dismissed the petition, and hence this revision petition by Chockalingam.

2. In the course of his order, the learned District Magistrate refers to Section 488(6), Criminal Procedure Code, which runs thus:

All evidence under this chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his Pleader and shall be recorded in the manner prescribed in the case of summons cases:Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof.

The learned District Magistrate recognises that Section 488(6), Criminal Procedure Code, empowers him to dispense with the presence of the husband but proceeds to observe that no provision of law has been enacted in the Code 'as to in what cases the personal attendance of the husband in a maintenance proceeding could be dispensed with,' and that, consequently, the husband must be present in Court, when evidence is recorded. He then says that if for any particular hearing the husband finds it not possible to attend the Court, he may get specific permission of the Court for absence for that particular hearing; in other words, that it was not possible for the Magistrate to exempt him from appearance generally.

3. I am unable to agree with the learned District Magistrate, when he thinks that Section 488(6), Criminal Procedure Code, does not empower him to grant general exemption to the husband to be represented by his Pleader at the hearings. Section 488(6) does not contain any such limitation. The words' when his personal attendance is dispensed with ' ' are wide enough to confer ample powers on the Magistrate to give general exemption to the husband. Of course, it is always open to the Magistrate to insist on the presence of the husband at any particular hearing or hearings for purposes of identification or otherwise.

4. This portion of Section 488(6), Criminal Procedure Code, is similar to Section 353, Criminal Procedure Code, which says:

Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his Pleader.

In Ummal Hasanath, In re : AIR1947Mad433 . Rajamannar, J., (as he then was) held that, in view of the language of Section 353, Criminal Procedure Code, it was open to the Magistrate to pass an order generally exempting the accused from appearing in the case. In that case, the accused was a purdahnash in lady, and the charge against her was for murder under Section 302, Indian Penal Code. She was arrested without a warrant and so Section 205, Criminal Procedure Code, could not be invoked. The learned Judge held that that did not prevent the accused invoking the powers of the Court during the actual enquiry or trial under Section 353, Criminal Procedure Code. The learned Judge also held that, in any event, the High Court had power Under Section 561-A, Criminal Procedure Code, and, having regard to the circumstances of the case, he directed that the personal attendance of the accused might be dispensed with, but adding that the Magistrate had always the power to direct her personal attendance. It seems to me that the above decision will apply equally to Section 488(6), and that Section 488(6) gives ample powers to the Magistrate to pass an order generally exempting the husband and permitting evidence to be taken in the presence of his Pleader. In fact, if the presence of the accused could be generally dispensed with in a criminal case under Section 353, Criminal Procedure Code, there is greater reason why the presence of the husband under Section 488(6) may be dispensed with because after all it is a quasi-civil proceeding.

5. Sri G.N. Chary, the learned Counsel appearing for the respondent in this petition (Sundari), Urges that the proviso to Section 488(6), Criminal Procedure Code, distinguishes Section 488(6) from the provisions of Section 353, Criminal Procedure Code, and also Sections 205 and 540-A, Criminal Procedure Code. According to him, distinction lies on the fact that in the absence of the husband, the proviso to Section 488(6) merely permits the Court to proceed in his absence but does not empower the Magistrate to issue a warrant of arrest whereas in the case of other, accused who is absent, a warrant could issue. I am, however, unable to accept this submission. The proviso, in my opinion, has no relevancy on the question at issue. It merely says that, where the husband is not present and his Pleader is not present, and there is reason to believe that the husband is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case in his absence. What we have to deal with is a case where the husband himself has applied for permission to be represented by a Pleader, and the proviso cannot apply to this case.

6. Taking into account all the circumstances of the case, I set aside the order of the learned District Magistrate and grant an order exempting Chockalingam from appearance. But it is open to the Magistrate to insist on his personal attendance whenever necessary.


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