SMT. SAJJAN KANWAR Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated March 8, 1990, passed by the additional Chief Judicial Magistrate No. 3, Jodhpur, by which the learned Additional Chief Judicial Magistrate rejected the application of the petitioner for dispensing with the personal attendance of the petitioner.

(2.) ASGAR Ali filed a complaint against the petitioner and Davendra Singh in the Court of the Additional Chief Judicial Magistrate No. 3, Jodhpur, who recorded the statement of complainant Under Section 202 Cr. P.C. and by his order dated February 10, 1988, took cognizance against the petitioner and issued process. The Court summoned the petitioner by bailable warrant. On October 5, 1989, an application was moved by the petitioner that she is 75 years of age and is suffering from hypertention, diabeties etc. and is unable to move. In support of it, the medical certificate was, also, produced. It was, also, mentioned in the application that she is a "PARDANASIN" lady and, therefore her personal attendance may be exempted and the charges may be read -over to her counsel. This application was opposed by the counsel for the complainant and the learned Magistrate, by his order dated march 8, 1990, rejected the application for exemption from personal attendance filed by the petitioner. It is against this order that the present petition has been filed by the petitioner.

(3.) IN the cases where the accused are "PARDANASIN" ladies and if the presence of the accused in the Court is not necessary for her being identified and there is no apprehension of her absconding and the absence of the accused from the Court is not likely to seriously prejudiced the complainant, the discretion in granting the exemption should be liberally used and the personal attendance of the ladies should be exempted. In such cases, their appearance through an advocate should be allowed unless the personal attendance of the accused is necessary in the interest of justice. The rejection of the application on the ground that the lady has gone to her parental house or she has gone to pilgrimage is no ground to reject the application by saying that when she can go to her parental house of the pilgrimage then she cannot be said to be a 'PARDANASIN' lady or she is unable to walk. Unless the offence is heinous one and the charge is a grave one, the application for dispensing with the personal attendance of the 'PARDANASIN' lady, who is accused before the Court, should be liberally considered and normally they should be granted the exemption from the personal attendance and the accused may be permitted to appear through her pleader and such appearance through an Advocate involves all the acts which the accused is supposed to do during the course of trial. Even the charges can be read -over to her pleader. In the case of Mahesh and Laxmi Narain v. The State of Rajasthan, 1980 RCC 379 this Court considered the similar question. In that case the accused had gone to Iran for earning his livelihood and an application was moved on behalf of the accused for exemption from personal attendance at the time when the charge was to be framed against him and this Court came to the conclusion that the Magistrate can read -over the charge to the counsel for the accused and the plea of the learned Counsel for the accused could be record. The Court, therefore, allowed the exemption from personal attendance to the accused and permitted the accused to be represented through his counsel at the time of framing the charge. The same view was reiterated by this Court, therefore, allowed the exemption from personal attendance to the accused and permitted the accused to be represented through his counsel at the time of framing the charge. The same view was reiterated by this Court in the case of Smt. Sarbati and Ors. v. The State of Rajasthan, 1989 RCC 367. In that case, the accused being a woman, was tried for offences Under Sections 327, 147, 324, 457 and 452 I.P.C. and was represented by her counsel. The Court, after hearing the parties, came to the conclusion that as the petitioner is a woman and is being duly represented by her counsel, her personal attendance should not be insisted -upon, especially when she is a lady.