INDRA DEVI Vs. SARNAGAT SINGH

JUDGEMENT

(1.) Sarnagat Singh filed a complaint at, Delhi under Sections 498, 379 and 109, Penal Code against his wife Mohindar Kaur, Kewal Kishan and the letter's sister Kumari Indra Devi alleging that Kewal Kishan and Kumari Indra Devi had enticed away his wife, who had taken away with her some property belonging to him. After recording the preliminary evidence the learned Magistrate, who dealt with the complaint found that the charge of theft was not substantiated and ordered the issue of warrants bailable in a sum of Rs. 500/- against Kewal Kishan and Kumari Indra Devi for their appearance as accused under Section 498, Penal Code and at the same time ordered the issue of a warrant of arrest against Mohindar Kaur, presumably for her appearance as a witness, though this was not stated in the order, which also omitted to specify the nature of the warrant to be issued, On behalf of Kumari Indra Devi an application was filed in the court of the learned Magistrate for her exemption from personal appearance as an accused in the case on the grounds that she was a respectable young lady of about 20 employed as the Head Mistress of a Girls School at Gurdaspur and was unfit to undertake the journey to Delhi, and moreover she had been falsely implicated in the case merely to put pressure on her brother. No section of the Criminal Procedure Code under which her exemption from personal appearance was claimed was mentioned in the application, but the learned Magistrate in his order treated it as being under Section 540A, Criminal P. C. and rejected it as without justification. Kumari Indra Devi has accordingly filed an application in this Court under Section 561A, Criminal P. C. for quashing the proceedings against her or in the alternative for her exemption from personal appearance, and also a revision petition was filed on behalf of Mohindar Kaur in the Court of the Sessions Judge at Delhi [or setting aside the order of the learned Magistrate for the issue of a warrant of arrest against her. This petition was dealt with by the learned Additional Sessions Judge who has forwarded it to this Court with the recommendation that the order being illegal should be set aside.

(2.) On behalf of Kumari Indra Devi in support of her petition for quashing the proceedings against her reliance is placed on a certificate by a Magistrate of Gurdaspur to the effect that he had seen the register of the school in which she is employed, from which it would appear that she was not absent from duty during the relevant period. It is, however, obviously impossible at this stage to estimate the strength of any alibi which Kumari Indra Devi may be able to produce in her defence in the case against her, nor is it possible at this stage to estimate the strength of the prosecution evidence which may be produced against her and I do not consider that sufficient grounds have been shown for quashing the proceedings against her in the case. As regards her personal appearance the only provision of the Criminal Procedure Code under which the personal attendance of an accused person in a Criminal case can be dispensed with are contained in Section 205 and Section 540A. Prom the Words of Section 205 it is clear that the personal attendance of the accused can only be dispensed with where a summons for his appearance is issued in the first instance, whereas in the present case a warrant has been issued, which is in accordance with the provisions of the second schedule to the Code, according to which a warrant shall ordinarily issue in the first instance in a case under Section 498, Penal Code. The relevant portion of Section 540A reads:

(3.) As regards the petition of Mohindar Kaur the provisions relating to the issue of a warrant of arrest for a person required to appear as a witness in the case are contained in Section 90 of the Code which reads: