USHA KUMARI Vs. PARMANAND

JUDGEMENT

(1.) This case has reached for hearing but unfortunately no one has turned up to argue the petition. I have gone through the file and the impugned order and I find that there is no merit in the petition.

(2.) . The fact are that a petition undersection 125 of the Code of Criminal Procedure, 1973 (for short 'the Code') is pending before the learned Magistrate and after the evidence of the petitioner-wife was completed, the case was adjourned for recording evidence of the respondent-husband but the evidence of the respondent was closed without recording any evidence. Later on, an application was moved by brother of the respondent for being examined as a wilness which application was rejected. However, the Magistrate thought it fit to record statement ot that witness exercising his discretion under Section 3 II of the Code. Later on, an application alongwith anaffidavit was given on behalf of the respondent for permission to adduce evidence to prove that in fact, the petitioner is employed with the FICCI and the evidence may be summoned in that respect from the said office. The Magistrate allowed the application and directed for summoning of the evidence from the said office. Thereafter, a prayer was made to the Magistrate that as the petitioner had neither filed any counter-affidavit nor any reply to the application, the petitioner may be required to appear in person so that the court may be able to arrive at the truth when evidence is recorded from the office of FICCI. whether the petitioner is employed in that office or not The challenge has been made to this order of the Magistrate that the Magistrate had no power to require the petitioner to appear in person.

(3.) . The proceedings under Section 125 of the Code may be not strictly proceedings where a party is termed as an accused or a complainant, yet the same have to be tried in accordance with the procedure prescribed for summons cases. In Smt. Horbhajan Kaw v. Major Sant Singh, AIR 1969 Delhi 298, it has been held by this court that proceedings under Section 488 of the Old Code of Criminal Procedure, which was similar to the Section 125 of the New Code, are criminal in nature and still the proceedings are to be tried as summons case although provisions of Section 242 of the Old Code, which are similar to provisions of Section 313 of the Code, are not applicable. The procedure prescribed for summons case is incorporated in Sections 251 to 259 of the Code and Section 256 lays down that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent there to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks it proper to adjourn the hearing of the case to home other day. Proviso to this Section lays down that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with bis attendance and proceed with the case. The petitioner in this case is represented by a counsel before the trial court. Thus, the Magistrate could dispense with the attendance of the complainant during the hearing of (he petitioner under Section 125 of the Code but it does not dispense with the discretion of the Magistrate to insist upon the presence of the complainant on any date of hearing if she interests of justice so require. So, as a matter of fact, by passing the impugned order the Magistrate is enforcing the main Section 256(1) and is revoking the permission envisaged in proviso to Section 256(1). I do not find any illegality or impropriety committed by the Magistrate in passing the impugned order for seeing that the petitioner appears on a date fixed when the evidence from the office, where she is alleged to be employed, is to be recorded in order to see that the identity of the petitioner is fixed Rather it is one of the points to be seen in the proceedings under Section 125 of the Code, whether the petitioner is a destitute and is not earning anything and in case the petitioner was not employed anywhere as alleged by the opposite party, the petitioner ought to have filed an affidavit in contesting the affidavit filed by the other side. Be that as it may, I do not find anything wrong in the Magistrate in insisting that the petitioner should appear in person on the day the evidence is to be record with regard to the factum of petitioner being employed in the office ot FICCI in case the petitioner disputes her employment in that office. I dismiss the petition The order saying the proceedings of the trial court is vacated. The file of the court be returned immediately to the trial court for proceeding further in the matter.