BEGUM FEJUN Vs. STATE

JUDGEMENT

(1.) THIS case comes on a reference made by the Sessions Judge, Jodhpur, by his report dated 22nd April 1954.

(2.) THE facts giving rise to it are that on 28th June, 1953 one Govind Narain made a report to the Sub-Inspector Police, Division B Jodhpur that he had advanced a loan of Rs. 9001/- to Sahebjada Faijmohamad of Jodhpur and Faijmohamad had therefore mortgaged his house with him for the said amount. He had also executed a rent-note in favour of the complainant. On 13-1-40 the complainant got a decree for possession of the house and also for arrears of rent. On 17-4-53 he was put in possession of the house through the bailiff of the court. It was alleged by him that one Mst. Begum Fezun, widow of Taj Mohamed Khan, and Noor Mohamed Khan made a criminal trespass into his house and took possession of certain portion thereof and therefore, it was prayed that they should be dealt with for committing offences under secs. 447, 448 and 379 I. P. C. THE police investigated into the matter and challa-ned Mst. Begum Fezun Bibi and Noor Mohamad under sec. 448 I. P. C.

(3.) IN the present case it is clear that the offence under sec. 448 I. P. C. alleged against the accused is not a crime of a serious nature. It is also not in dispute that the accused is an old pardahnashin lady of about 70 years of age. Therefore the learned Magistrate who dispensed with her personal attendance should not have compelled her to appear simply for her statement under sec 342 Cr. P. C. The learned Magistrate does not say that her own statement is absolutely essential for certain reasons. Perhaps he was under the impression that her pleader could not be examined in her stead and therefore he directed her personal attendance. IN such a case the court may dispense with the attendance of the accused even till the delivery of judgment if only a sentence of fine is imposed. The reference made by the learned Sessions Judge is, therefore, accepted and the Magistrate is directed that he should dispense with the personal attendance of the accused until he thinks that she is liable to conviction and the sentence of fine is not adequate. .