SMT. HIRAMANI PATNAIK AND ANR. Vs. KUMUDINI DEVI

JUDGEMENT

(1.) THE grievance of the two Petitioners is that they are Purdanashin ladies and besides Petitioner No. 1 is an old lady of sixty years and is completely bed -ridden which facts they disclosed in their petition dated 16.10.85 before the learned Magistrate which having been accepted their representation under Section 205 Code of Criminal Procedure was allowed but however they have been compelled by the impugned order, without considering such facts, to appear in court merely because P.W. 2 stated that though he knows some ladies to have taken part in the marriage function, yet he can identify them only on their appearance in court. The case arises out of a complaint filed by the opposite party against seven accused persons including the Petitioners and her husband under Sections 494/108 IPC alleging her husband to have undergone a second marriage with accused No. 2. The cage is at the stage of taking evidence before charge. Accused No. 2 had preferred; against a similar order passed on 27.1.88, Criminal Revision No. 293 of 1933 which was disposed of by order dated 16.8.88 observing that it did not appear at that stage that the appearance of accused No. 2 was essentially necessary for the purpose of identification which question might come up for consideration after charge was framed and the learned Magistrate was directed to proceed with the case before charge, call upon the complainant to examine her witnesses and consider the question of framing of charge and that the question of appearance of accused No. 2 was left open to be considered at the stage of trial making it clear that the non -identification of accused No. 2 would not be a restraining factor for consideration so far as framing of charge is concerned.

(2.) MR . G. Tripathy, the learned Counsel for the Petitioners, in assailing the order has urged that same considerations should also apply so far as the present Petitioners are concerned and that further since the evidence of P.W. 2 is already over and he has been examined, cross -examined and discharged; a petition would thereafter not lie to direct the Petitioners to appear for his identification and such step if at all could only have been taken keeping the cross -examination of P.W. 2 pending. It has also been further contended that since the accused persons have not yet adopted any particular defence and the nature of defence to be adopted by them would ultimately determine the necessity or otherwise of their appearance in Court, the consideration whether the stage for their appearance in Court for the purpose of identification is necessary has not yet reached. It is also urged that since P.W. 2 does not know the identity of the Petitioners, their appearance and identification in Court for the first time would be inherently risky for the defence as it would offer an opportunity to P.W. 2 to pick out the Petitioners for identification.

(3.) THE first submission made by Mr. Mohanty has no substance since even though an order was passed on 27.1.88 directing appearance of the Petitioners, yet it appears that subsequent to it the learned Magistrate allowed petitions under Section 317 Code of Criminal Procedure from day to day and on 28.7.88 passed order rejecting the petition filed on that day under Section 317 Code of Criminal Procedure. The Petitioners having moved against such order, it cannot be said that the revision is not maintainable.