1984 Supreme(MP) 245

N. K. Singh, J.
Krishna Kumari v. Daljit Singh
Cr. Misc. Case No. 626 of 1983 (G); Decided on 7-4-1984.

Headnote:(1) Criminal P.C., 1973 -- S. 205 -- application for exemption under -- hearing cannot be postponed calling the accused in Court in meantime.

        (2) Criminal P. C., 1973 -- S. 205 -- applicant pardanashin lady -- presence in court should not be insisted upon even at initial stage for execution of bond -- bond can be obtained through her counsel.

        Under order dated 20-4-1982, the learned Magistrate directed the petitioner to appear personally on the following date of hearing, observing that--

       ^^izdj.k esa vijk/k ds fooj.k Hkh ugha yxs gSaA vr% eSa ,slk dksbZ dkj.k ugha ikrk gw¡ ftlls vkt dh mldh O;fDrxr gkftjh tk;sa vfHkHkk"kd Lohdkj dh tk,A bl vkosnu ij vkjksi yxus ds ckn gh fopkj fd;k tk,xkA**

        The petitioner, thereon, filed an earlier application under Section 482 of the Code before this Court which was registered a Criminal Misc. Case No. 1217 of 1982 and disposed of by an order dated 9-3-1983 wherein the following observations were made :--

        "When an application under Section 205 (1) for exemption from personal appearance on further dates of hearing is filed on behalf of an accused, it is incumbent upon the trial Court to hear and dispose it of one way or the other instead of postponing its hearing and disposal at further hearing or stage of the case and direct the accused to appear personally till then. That is so because the very purpose of making the application is practically frustrated if the accused is, thus, required to appear personally until a future hearing or stage of the case."

       Accordingly, the impugned order dated 20-4-1982 passed by the Magistrate was set aside and he was directed to dispose of the petitioners application for exemption from personal appearance according to law, before proceeding further with the case.

        Presently, the impugned order dated 8-7-1983 had been made by the learned Magistrate in compliance of the earlier order of this Court referred to above whereby the petitioners application dated 20-4-1982 for exemption from personal appearance has been rejected. A reading of the impugned order brings out that the relevant case law of this Court was duly cited before the learned Magistrate in course of the arguments. After referring to this case law, the learned Magistrate has observed as under :

       esjs er esa bl fLFkfr ij tcfd vkjksih dzŒ 5 U;k;ky; ds le{k ,d Hkh ckj mifLFkr ugha gqbZ gS vkjksih dzŒ 5 dh O;fDrxr mifLFkfr vko‘;d ,oa vfuok;Z gksuk ikbZ tkrh gS] D;ksafd mldh O;fDrxr mifLFkfr esa tekur eqp&yds dk iz‘u Hkh fopkj.kh; gSA

        mDr dh xbZ leh{kk vkSj bl izdj.k dh LVst dks /;ku esa j[krs gq, vkjksih dzŒ 5 dks O;fDrxr mifLFkfr ls eqDr fd;s tkus dk dksbZ Hkh iz‘u U;k;ksfpr gksuk ugha ik;k tkrk gSA bl dkj.k mDr vkosnu i= Lohdkj ;ksX; ugha gSA ifj.kker% vkjksih dzekad 5 ds O;fDrxr mifLFkr gksus ds rRdky ckn ;fn og pkgs rks viuh O;fDrxr mifLFkfr ekQ fd, tkus ds laca/k esa bl vk‘k; dk vkosnu i= iqu% izLrqr djus ds fy, Lora= gSA

        Held : From a reading of the above, it is clear that the learned Magistrate appears to be of the view that the presence of the accused, even though a Pardanishin lady was necessary for tile purpose of executing a bond in respect of future appearances, as and when required by the Court. This is not correct. Even if the learned Magistrate desired to obtain a bond from the petitioner, for her appearance, if and when required, this would possibly be done by obtaining the personal bond from her through her counsel and the surety bond, if required, from the surety, in the court. There are various provisions in the Code, relating to different stages providing for exemption of the personal appearance of the accused, in the Court, under circumstances of the case, to write, sections 205, 273, 313 (in respect of summons cases only) and 317. The present one is a summons case. Section 205 of the Code comes into opera1ion since the stage a Magistrate issued summons for the personal attendance of the accused.

        It is not necessary for the Magistrate to insist even on an initial appearance on the part of the accused for the purpose of executing a bond. It is clearly provided that when the personal attendance is dispensed with, the Magistrate may permit the concerning accused to appear by his pleader. In a case, the accused, who seeks personal exemption, is a pardanshin lady, the very purpose enabling the Magistrate to dispense with her personal attendance would be frustrated, in case it was insisted that she must appear at least once for- the execution of the bond. Thus, the impugned order dated 8-7-1983 passed by the learned trial Magistrate, insisting on atleast an initial appearance of the petitioner solely for the purpose of executing a bond, is under the circumstance of the case clearly in the wrong.

        1982 MPLJ SN 213, 1963 MPLJ SN 122, 1983 MPLJ SN 173 and 1966 JLJ SN 105 relied on. Petition allowed.