KISHORI BALA SAHAI Vs. BHAGAWANDAS AGARWALLA

JUDGEMENT

(1.) This is a petition for revision of an order dated 8-8-1955 passed by a Magistrate Sri M. N. Pramanik directing that the accused should appear personally on 18-8-1955.

(2.) The facts of the case are briefly that on 26-2-1954 the accused was summoned under Section 406, Penal Code on the complaint of the opposite party and on 7-4-1954 she was allowed to appear through a lawyer upto the stage when a charge under Section 406, I. P. C. was framed against her, after the examination of 3 witnesses for the prosecution on 27-9-1954. On the 3rd of December the Magistrate who was trying the case recorded an order that he was under orders of transfer and the record should be put up before the Sub-divisional Officer. On 17-12-1954, the Sub-divisional Officer withdrew the case to his file and transferred it to another Magistrate. On 20-1-1955 the complainant prayed to the Magistrate to whom the case had been transferred for directing the accused to appear personally in Court. The Magistrate rejected that prayer. Then the complainant filed an application for time for moving the High Court under Section 526, Cr. P. C. and the case was accordingly adjourned on the complainant executing a bond for Rs. 200/-. What the complainant however, did was first to move the Sub-divisional Magistrate under Section 528 (2). The Sub-divisional Magistrate dismissed the application. Then the Additional District Magistrate was moved under the same section and the Additional District Magistrate by his order dated 5-7-1955 transferred the case to the file of Sri M. N. Pramanik. In doing so, he made an observation that the Magistrate dealing with the case should have enforced the attendance of the accused. When the case went to the file of Sri M. N. Pramanik on 11-7-1955, he fixed 1-8-1955 for appearance of the accused and called upon her surety to produce her on 1-8-1955. The surety asked for time to produce the accused and it was ordered that he must produce the accused on 4-8-1955. On 4-8-1955 the accused was absent and a petition was filed on her behalf with a medical certificate and there was a petition on behalf of the complainant stating that he would file an affidavit challenging the medical certificate. Then there was an affidavit filed and the learned Magistrate made the order now complained of.

(3.) It appears that although the case started as far back as 26-2-1954, the accused has at no time appeared before any of the Courts. It further appears that the Civil Surgeon of the district where she ordinarily resided at one stage sometime in 1954 reported that she was too ill to attend Court. Then there was a certificate from the local Assistant Surgeon to that effect. The second medical certificate is dated 2-8-1955. There it is stated that the accused Sm. Kishori Bala Sahai has been under the treatment of this particular medical practitioner for the last 8 months and that she is an old patient of epidemic dropsy with dilated heart and her blood pressure is 90/65 and that she had just then an attack of cellulitis of the face and was not fit to take a Journey to Asansol even in a car. On behalf of the complainant an affidavit was sworn on 8-8-1955 by one Kanai to the effect that he knew Sm. Kishoribala Sahai and that he very often saw her travelling at Dhanbad in a car. On the basis of this affidavit the learned Magistrate made the impugned order.