Kusum Choudhary vs State of Jharkhand and Another

Amareshwar Sahay, J.—In the present application, the petitioner has prayed for quashing of the order dated 10.6.2003 passed by the learned S.D.J.M., Deoghar in T.R. No. 266 of 2003, whereby the learned S.D.J.M., rejected the petition filed by the petitioner u/s 205, Cr. P.C., who is an accused in connection with P.C.R. Case No. 614 of 2001, a case u/s 498A and other sections of the Indian Penal Code.

The facts in short given rise to the present application are that Smt. Sudha Choudhary lodged a complaint being P.C.R. No. 614 of 2001 before the Chief Judicial Magistrate, Deoghar against Umesh Kumar Choudhary, Aman Kumar Choudhary, Smt. Kusum Choudhary (petitioner) and Smt. Usha Rani, alleging therein that the complainant, Smt. Sudha Choudhary was married to Umesh Kumar Choudhary in the year 1998 and after the marriage she was residing in her laws'' place. The allegation is that her husband at the instance of the other accused persons including the petitioner because of the demand of dowry was brutally assaulted and was not being provided proper food and she was locked in a room. There is specific allegations against the petitioner who is said to be the sister-in-law (Gotni) that esh (petitioner) as well as accused No. 4 (mother-in-law) used to assault the complainant mercilessly.

The learned S.D.J.M. has taken cognizance of the offence against the accused persons including the petitioner.

The petitioner challenged the order taking cognizance by filing a Cr. M.P. No. 126 of 2002 before this Court, which, after some arguments, was dismissed as withdrawn vide order dated 15.2.2003.

It appears that thereafter a petition u/s 205, Cr. P.C. was filed by the petitioner as well as other accused persons namely Umesh Kumar Choudhary, husband of the complainant, which was rejected by the learned S.D.J.M. vide order dated 10.6.2003. The said petitions have been annexed as Annexures 3 and 4 to this application.

The husband of the complainant, Umesh Kumar Choudhary thereafter filed Cr. M.P. No. 737 of 2003 challenging the order of the learned S.D.J.M., whereby the prayer of the petitioner u/s 205, Cr. P.C. was rejected. This Court vide order dated 30.2.2003 dismissed the said application.''

Now the petitioner has filed this application challenging the said very order dated 10.6.2003 whereby her prayer for dispensing with the personal attendance u/s 205, Cr. P.C. was rejected.

The earned Counsel for the petitioner Mr. M.M. Banerjee has submitted that the petitioner resides at Calcutta and is a psychiatric patient and, therefore, the order for dispensing with her personal appearance in Court was wrongly rejected by the learned S.D.J.M. He has further argued that since the petitioner is a female and is a psychiatric patient and, therefore, she was entitled to the benefit of Section 205, Cr. P.C. In support of his contentions, learned Counsel for the petitioner has relied on the decisions of the Manager, V.G. Panneerdas and Co., Madras and 4 Others v. Nataraja Thevar, reported in (1988)1 Cri 222; Anila Bala Devi Vs. The Chairman, Kandi Municipality, and also Kaveri @ Benga and Anr. v. State of Orissa, reported in 1995 CLJ 224.

This Court in Firoza Khatoon and Anr. v. State of Jharkhand, reported in (2003) 2 J.L.J.R. 502, has already held that Section 205, Cr. P.C. can be used for dispensing with the personal appearance of the accused only in cases of trivial in nature or petty offences, in which at the first instance the Court issues summon for appearance of the accused relying on the decision reported in M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, and (1998) 1 P.L.J.R. 502, it has been held by this Court in the said decision that the Legislature never intended that the provision of Section 205, Cr. P.C. should be used to dispense with the personal appearance of the accused facing prosecution in serious cases involving major offence like moral turpitude or offence punishable with a sentence of long imprisonment.

In the first case i.e., (1988) 1 Crimes cited by Mr. M.M Banerjee, the Madras High Court has also held in concluding portion of para 8 of the said judgment that it is needless to say that in cases involving moral turpitude or grievous or heinous crimes where the presence of the accused is necessary to enable the prosecution witness to identify them the discretion should be exercised against the accused and, therefore, this case is of no help to the petitioner. The second decision i.e., Anila Bala Devi Vs. The Chairman, Kandi Municipality, cited by Mr. Banerjee, is a case where a Pardanashin lady was prosecuted for offence under the Bengal Municipal Act and third decision i.e., Kaveri alias Benga and Another Vs. The State, cited by Mr. Banerjee is also of no help to the petitioner as from the said judgment it does not appear that the petitioner of the said cases was being prosecuted for committing an offence of serious nature.

No doubt the Court should be liberal in dispensing with the personal appearance of the accused particularly the females if they are accused, facing prosecution for committing an offence of petty or trivial nature or not of a serious nature. Petty offences are the offence in which maximum punishment is fine or short term in jail as provided under the law.

In my view the offence u/s 498A does not come under the purview of the petty offence or the offence not of serious in nature and, therefore, extending the benefit of Section 205, Cr. P.C. in such a case would be against the intent of Legislature.

In view of the direct decision of this Court reported in 2003 (2) J.LJ.R. 502, and in view of my discussions and findings above, I find that the learned Magistrate has rightly rejected the prayer of the petitioner and there is no illegality in it,

In the result, this application has got no merit and is accordingly dismissed.