KESAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference made by the learned Additional Sessions Judge, Tonic with a recommendation, that the order of the learned Munsiff-Magistrate, Tonk dated 6-12-1971 directing the personal appearance of Mst. Kesar, Ladi, Kamla, Shanti and Prehladi petitioners in his Court for the purpose of their examination under Section 342, of the old Code of Criminal Procedure, be quashed and the learned Magistrate be directed to proceed with the trial of the case without recording their statements under the aforesaid section.

(2.) THE reference arises under the following circumstances: The petitioners along with Radhey Shyam and Satya Narain, co-accused, have been prosecuted for the offences punishable under Sections 451, 147 and 323, I. P. C. in the Court of the learned Additional Munsiff-Magistrate, Tonk on basis of a report lodged with the police by Brij Mohan S/o Ganesh Lal Mahajan, resident of Pipalu. The learned Magistrate, upon consideration of all the documents referred to in Section 173, and after giving the prosecution and the accused an opportunity of being heard, framed charges in writing against each petitioner under Sections 147, 323 and 451, I. P. C. He, however, granted exemption from personal attendance to the petitioners upon an application made to him by them in this behalf on 30-5-1967. Thereafter, the learned Magistrate recorded the prosecution evidence in the presence of the petitioners' pleader, and on 6-12-1971 directed the personal attendance of the petitioners in the Court for the purpose of their examination under Section 342, Criminal P. C. Aggrieved by this order, the petitioners filed a revision petition in the Court of the learned District Magistrate; from where it was transferred to the Court of the learned Additional Sessions Judge, Tonic vide an order dated 13-9-1972. The learned Additional Sessions Judge after hearing the parties was of the view that the object of Section 342, Criminal P. C. is to enable the accused to explain any circumstances appearing against him in the evidence, and that if the accused, whose personal attendance in the Court has been exempted, is not willing to appear in the Court for being examined under Section 342, Cri. P. C. , he cannot be compelled by the Court to appear in person for the purpose of his examination. Hence, he has made this reference.

(3.) I have carefully gone through the record, and heard Mr. V. S. Dave for the petitioners, and Mr. G. A. Khan appearing on behalf of the State. It is not disputed be fore me that the learned Magistrate trying the case may, in his discretion at any stage of the proceeding, order the personal attendance of the petitioners for any particular purpose. Sub-section (2) of Section 205, of the old Code of Criminal Procedure empowers the Court to require the personal attendance of the accused who has been allowed to appear by Pleader, if the Court thinks it necessary or desirable that his presence is required for a proper conduct of the case. The contention of the petitioners before me is that where the personal attendance of the accused has been dispensed with, it is not obligatory on the Magistrate to enforce their personal attendance for examination under Section 342, Criminal P. C. especially when the petitioners do not want to appear in the Court for the purpose of making a statement after the close of the prosecution evidence. Mr. G. A. Khan appearing on behalf of the State on the other hand contended that the mere fact that the petitioners are Pardanasin ladies does not entitle them to claim exemption for all the time during the course of trial, even if their presence is required by the Court to enable them to explain any circumstances appearing against them in the evidence and to determine the question of their guilt.