KUSUMA DEVI Vs. GOVIND SINGH

JUDGEMENT

(1.) THIS is a revision by Mst. Kusuma Devi against an order of the Additional sessions Judge, Jaipur City, dated 22nd March, 1963. Upholding an order of the city Magistrate, Jaipur, dated the 28th May, 1962, directing that she should appear in Court for being examined in a proceeding under Section 107, Cri. P. C.

(2.) IT appears that on the application of respondent Thakur Govind Singh, a case was registered under Section 107, Cri. P. C. against the petitioner and her husband in the Court of the City Magistrate, Jaipur. The petitioner was admittedly exempted from personal attendance in Court and was permitted to appear by a pleader under Section 116, Cri. P. C. After the evidence of the opposite party, who was the petitioner in the trial Court was concluded, the Magistrate adjourned the case for the examination of the petitioner and for his evidence. An application was moved on behalf of the petitioner here that the provisions of Section 342, Cri, P. C. were not applicable to an inquiry under Section 117, Cri. P. C. and consequently her presence in Court need not be insisted upon and that in any case her counsel be examined in place of her. The learned Magistrate rejected this prayer. The petitioner than went in revision to the learned Additional Sessions Judge, Jaipur city, who upheld the order of the trial Court and this is how the present revision has been filed.

(3.) LEARNED counsel for the petitioner strenuously contends before me that the order of the Courts below was incorrect and therefore deserves to be quashed. His principal submission is that the provisions of Section 342, Cri P. C. cannot in terms be applied to an inquiry under Section 117. Learned counsel has invited my attention to Binode Behari v. Emperor, AIR 1924 Cal 392 which was followed in kartick Chandra v. Panna Lal, AIR 1958 Cal 140. It may be pointed out at once that as I look at these cases, they are entirely distinguishable from this facts of the present case. In both of these cases, the persons sought to be proceeded against under Section 107, Cr. P. C. were not examined at the stage of the enquiry at all and consequently they raised a complaint before the High Court that they should have been examined and that that having not been done, the entire inquiry was vitiated. This plea was repelled, a view having been taken that Section 342 was not applicable to an inquiry under Chapter VIII of the Code of Criminal procedure, and that, in any case, it was a curable irregularity, and no prejudice having been caused to the persons sought to be proceeded against, there was no ground for quashing the inquiry. The point to notice is that in these cases, the grievance was raised by the accused at a late stage, that is, after the inquiry was over and their grievance was rejected as untenable because no prejudice had been caused to them, and, further-more, it was held that the irregularity was curable. The position in the case before me is entirely different. It is the Magistrate here who wishes to examine the petitioner at the close of the evidence for the prosecution and the petitioner who was the respondent in the trial Court is resisting this procedure.