GOPAL Vs. STATE OF RAJ.

JUDGEMENT

(1.) An application under Sec. 438 Cr. P.C, has been filed against the order dated 17.11.88. I have perused the order dated 17.11.88 and the certified copy of the application moved for exemption from the attendance before the learned special Judge, Dholpur. In my opinion, an application under Sec. 438 Cr. P.C. in face of the order is misconceived and cannot be moved keeping in view the provisions of the Rajasthan Dacoity Affected Areas Act, 1986. However, the order can be considered by this Court under its inherent powers in case if it does not advance the cause of justice. The scope of Sec. 482 Cr. P.C. is extended to the extent of securing the ends of justice. In the instant case, the accused was to appear in the Court of Special Judge on 17.11.1988. He did not appear before the court. This date was fixed on a date when the employees of the sub-ordinate courts were on strike and the courts were not functioning properly. On this date, i.e. 17-11-88, the father of the accused, who is not an accused in the case, appeared for his son and moved an application in writing for exemption of attendance of his son stating that he was sick. An affidavit to this effect was also filed by him before the learned Special Judge. The learned Special Judge cancelled the bail of the accused and directed to issue warrant that the learned Public Prosecutor has opposed the same. No reasons have been assigned as to why the affidavit was said to be per se false. The father of the accused who moved the application had sworn in the affidavit on the same day and if the learned Public Prosecutor wanted to challenge it, he should have moved an application for cross-examining deponent on the same. Unless a counter affidavit is filed or there is any material to counter the effect of the affidavit like the one same cannot be thrown out of consideration. In a country like ours where most of the population is illiterate and when there are no proper medical facility available in the villages, it is futile to insist on medical certificate in the first instant. If a family member of the accused appears and files an affidavit it is ex facie a proof of the illness of the accused who at least had been careful to inform the Court of the cause of his absence on the date of hearing. To reject such affidavits or to dis-believe, there must be some material on record. The rejection of the affidavit without assigning any reason for doing so is wholly unjustified and cannot be said to be using a sound judicial discretion in considering an application for exemption from attendance on a particular date. It may be observed that in case even in bonafide cases of sickness where affidavits are filed by the family members exemption is not granted and medical certificate in remote corners of the country are insisted then it will in the first instance give rise to obtain false certificates and (illegible) increasing corruption.

(2.) I accordingly set aside the order passed by the Special Judge, Dholpur dated 17-11-88 and direct that the attendance of the accused shall be deemed to have been exempted on 17-11-88 and the proceedings sought to be initiated under Sec. 446 Cr. P.C. are dropped. The accused is directed to appear before the Court on Jan. 4, 1989. In case he fails to appear, it will be open to the learned Special Judge to pass an order in accordance with law.

(3.) With these observations the application is disposed of. Application allowed.