SURUJA DEI AND ANR. Vs. CHANDRAMANI SAHU

JUDGEMENT

(1.) THE two Petitioners along with some other persons are being proceeded against in the Court of a Magistrate at Khandapara for offences under Sections 323, 379, 448 and 143, Indian Penal Code. The petition of complaint was filed in Court on 12 -7 -1967. The two Petitioners who are ladies applied under Section 205, Code of Criminal Procedure to be represented through counsel. That matter came up for consideration of the learned Magistrate on 12.8.1967. He, however, did not allow representation and directed their appearance in Court on the ground that the complainant filed a petition to direct the appear once of the ladies as the witnesses for the prosecution were not able to name them and they could only identify them if present in the dock. The learned Magistrate did not indicate in his order of 12 -8 -1967 as to whether the Petitioners were pardanashin ladies. From the record it transpires that the second Petitioner Saria was aged about 20 then and would at present be about 23 or 24. From the record it also transpires that she had not been married by then and was being described as the daughter of Kamala Palai, accused No. 1 in that case. The first Petitioner happens to be the wife of Kamala. After the learned Magistrate rejected the petition there was an application before the learned Additional District Magistrate (Judicial) in Criminal Revision No. 51 of 1967 to recommend the matter to this Court under Section 438, Code of Criminal Procedure. That was also rejected. The present petition is directed against the said order.

(2.) THE normal rule is that the accused persons are bound to appear at the trial. A special provision has been made under Section 205, Code of Criminal Procedure vesting powers in the Magistrate to dispense with the personal attendance of the accused. The circumstances in which the discretion has to be used by the trying Magistrate have not been fettered by any statutory prescription. It is the settled view of Courts that in this country ladies, if they are pardanashin, should not be forced to appear before the Court unless their presence is very much necessary for the trial itself. There are cases where it has been stated that if identification has to be done, for the said purpose only witnesses may be asked to identify the female accused at a place different from the Court. Sometimes identification has been permitted even at the residence of the female accused and on other occasions at a place other than the Court. There are also cases where identification has been permitted in camera, that is, either in the chamber of the trying Magistrate or in the Court -ball after steps have been taken to ensure that it is not open to the public at large.

(3.) THE offences are said to be punishable under Sections 323, 379, 448 and 143, Indian Penal Code. They are not certainly of a very serious nature. the witnesses who have been cited by the prosecution are all of the same village. Two of the witnesses are stated to have shifted recently to a neighbouring village. If identification of the two female accused is really necessary, the same can be done in this case by requiring the presence of the two ladies on a particular date to be fixed by the learned Magistrate. In view of the fact that one of the Petitioners is quite young and may not have yet been married and there is no finding that she does not be directed to appear in open Court. The identification can be made either in the chamber of the Magistrate or in the Court -room if the learned Magistrate takes adequate steps to exclude the presence of all other persons at the time the identification is made. Mr. Rath suggested during bearing that the chamber would be more appropriate than the open Court -room. I do not think I should make a distinction in the case of the other Petitioner, once the benefit is being extended to the daughter. I would, therefore, direct that the learned Magistrate should fix a definite date for the purpose of identification of the two Petitioners by the p.ws. The identification should be preferably done in the chamber of the learned Magistrate. If the prosecution does not take advantage of the opportunity of the presence of the two ladies on the date to be fixed by the learned Magistrate, further opportunity on the plea of identification would not be available to the prosecution. On all other dates their representation under Section 205, Code of Criminal Procedure would be granted. This revision is disposed of with the aforesaid modification. The records be transmitted immediately. The learned Magistrate is called upon to dispose of this case within three months from today and report disposal to this Court.