Smt. Sarla Rani Vadehra vs State and Another

G.L. Gupta, J.—This misc. petition is directed against the orders dt. 12.10.1989 and 12.12.1989 passed by the learned Judicial Magistrate No. 2, Bhilwara, whereby he allowed the application of the complainant-respondent No. 2 for cross- examination of Smt. Sarla Rani Vadhera, accused-petitioner.

The facts necessary to decide the petition are these. Respondent No. 2 Sushri Sobhagya Goyal was the lecturer in Girls College, Bhilwara. Smt. Sarla Vadehra (petitioner) was the Principal of that College. Miss Goyal filed a criminal complaint against Smt. Vadehra and ''one Shri Shivnath Singh Kapoor for offence u/s 166, 167, 177, 187, 217, 218, 504 and 511 IPC. When the enquiry was being held by the magistrate under Chapter XV Cr.P.C, and application was filed u/s 91 Cr.P.C. by Miss. Goyal for the production of some documents from the office of Smt. Vadehra which was allowed. A notice was sent to Smt. Vadehra for producing the document. On 21.9.1984 Smt. Vadehra did not appear in Court but sent a reply that she was not competent to produce the documents and it could only be done after the orders of the Director, College Education, Jaipur. The non-attendance of Smt. Vadehra in Court and the reply offended the Magistrate and he directed that a notice u/s 350 Cr.P.C. be given to her as to why proceedings should not be taken against her for disobedience of the orders of the Court. Smt. Vadehra appeared and filed reply supported by an affidavit. On 15.3.1985 Miss. Goyal filed an application u/s 340 Cr.P.C. praying for cross-examination of Smt. Vadehra on her affidavit. This application was disposed of by the Magistrate vide impugned order dt. 12.10.1989 holding that the complainant has not filed any counter affidavit and hence the permission to cross-examine Smt. Vadehra could not be given and if she filed counter affidavit appropriate orders would be passed. Thereafter, Miss. Goyal filed counter affidavit. By the impugned order dt. 12.12.1989 the learned Magistrate directed the cross-examination of Smt. Vadehra on her affidavit dt. 24.1.1985.

Mr. Shishodia strenuously argued that the order of the learned Magistrate is wholly illegal as the position of the petitioner before the trial court was that of the accused and she could not be asked to take oath and stand the test of cross- examination.

The learned Public Prosecutor could not support the order of the Magistrate.

The facts stated above make it clear that when the enquiry under Chapter XV, Cr. P.C. was going on in the complaint filed by respondent Miss Goyal, Mrs. Vadehra, accused named in the complaint, was asked to produce certain documents and when she regretted her inability to produce the document a notice u/s 350 Cr. P.C. was given to her and in reply to that notice Smt. Vadehra had filed her affidavit. The position of the petitioner obviously was that of the accused. It is settled principle that the accused cannot be administered oath in any circumstance save when he or she appears as a witness after making an application u/s 315 Cr. P.C. The position would not be different even before the Magistrate directs the issuance of summons against the accused u/s 204 Cr. P.C. In the complaint Smt. Vadehra was arrayed as the accused. The Magistrate could not compel Smt. Vadehra to produce the documents which would be used to prove charge against her. The proceedings held by the Magistrate for the production of the documents amounted to abuse of process of Court.

Apart from that, Section 350 Cr. P.C. applies only when a witness being summoned to appear before a criminal court without just excuse neglects or refuse to attend the time and place that the Court may punish him after following the summary procedure. The Section obviously applies to the person who is called as a witness in a case. Smt. Vadehra in the instant case was not called as a witness. She was made accused in the complaint and therefore, no action could be taken u/s 350 Cr. P.C. against her.'' Moreover, the Court had no occasion to make observations before issuing notice u/s 350 Cr. P.C. that it was expedient in the interest of justice that Smt. Vadehara should be tried summarily. That being so, the proceedings u/s 350 Cr. P.C. against her were wholly illegal.

That apart, the court can proceed u/s 340 Cr. P.C. only when it is brought to its notice that offence as mentioned in Section 195(a)(b) was committed. The application of the respondent does not state that the act of the accused fell in any of the sections mentioned in Clause (b) of Sub-section (1) of Section 195 Cr. P.C. Therefore, the learned Magistrate has obviously erred in proceeding u/s 340 Cr. P.C.

For the reasons stated above, the entire proceedings u/s 350 or 340 Cr. P.C. are without jurisdiction and are liable to be quashed.

Consequently, the petition succeeds and the impugned orders are set aside. The record of the case be sent back to the trial court for deciding the case according to law.