Smt. Zubeda vs The Stale of Rajasthan and Another

B.R. Arora, J.—This miscellaneous petition is directed against the order dated March 6, 1990, passed by the Additional Civil Judge cum Chief Judicial Magistrate, Jodhpur, by which the learned Magistrate took cognizance against the petitioner u/s 498 I.P.C.

Smt. Parveen filed a complaint against Abdul Sakoor, Mst. Jubeda, Abdul Kayoom, Abdul Aziz and Mst. Amlurahim in the Court of the learned Additional Chief Judicial Magistrate No. 1, Jodhpur, Under Sections 323,406,420,120B and 498A I.P.C. and Section 4 of the Prohibition of Dowry Act. The learned Additional Chief Judicial Magistrate No. 1, Jodhpur, sent this complaint to the Police Station, Shastri Nagar, Jodhpur, for investigation, u/s 156 Cr.P.C. The police, after necessary investigation, presented the challan only against Abdul Sakoor u/s 4981.P.C. and regarding the others, the police was of the opinion that no case is made-out against them. The complainant filed a protest petition and after hearing the arguments on the protest petition, the learned Additional Chief Judicial Magistrate took cognizance against Jubeda, also, u/s 493 I.P.C. It is against this order that the present petition u/s 482 Cr.P.C. has been filed.

Heard learned Counsel for the petitioner and the learned Public Prosecutor and perused the order passed by the learned lower Court and the record of the case shown by the learned Counsel for the parties.

At the time of taking the cognizance of the witnesses and the suspected conditions of the offence to satisfy itself that a prima facie case is made-out to proceed-with against the present accused. At this stage, the evidence is not to be meticulously examined as required to be examined at the final stage. If there is prima facie evidence to proceed-with, then the Court can take cognizance and proceed-with the matter. If the accused, against whom the cognizance has been taken, has any valid defence available to her, then she can agitate that point before the trial Court and the trial Court will decide her objections if so raised at the appropriate stage. But the power u/s 482 Cr.P.C. cannot be lightly used in quashing a proceeding when a prima facie case has been made-out against the petitioner. It has been held by the Supreme Court in the case of The State of Haryana v. Choudhary Bhajan Lal (Judgments Today JT 1990 ((4) P&H 650)):

We also give a notice of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

In this view of the matter, I am of the opinion that if the petitioner has any valid defence available to her, including the point mentioned above, the petitioner can raise all these objections before the learned trial Court and the learned trial Court will decide all these objections at the appropriate time, if so raised.

It was, also, contended by the counsel for the petitioner that the petitioner being a "PARDANASIN" lady, the learned lower Court was not justified in issuing the non-bailable warrant against her to seek her presence, hence the order passed by the learned lower Court is, thus, liable to be quashed. Though this ground has been raised by the learned Counsel for the petitioner, but it is pertinent to note that after issuance of the non- bailable warrant, the petitioner appeared before the learned lower Court and she has been granted bail and the bail-bonds have already been furnished. He, therefore, prayed that, now, since the bail-bonds have already been furnished, the petitioner may be allowed- to appear in the trial Court through her pleader and her personal attendance in the Court should not be insisted upon as she is a "PARDANASIN" lady. I have considered this aspect of the matter. In the case where the accused is a "PARDANASIN" lady, and if the presence of the accused in the Court is not necessary for her being identified and if there is no apprehension of her being absconded and the absence of the accused from the Court is not likely to prejudice the case of the complainant, then the learned lower Court should consider the application for exemption from personal attendance libarally and if possible, to grant exemption from personal attendance. The petitioner may move an application before the learned trial Court for her exemption from personal attendance and if such application is moved, the learned lower Court will consider it in accordance with law.

In the result, this Miscellaneous petition, filed by the petitioner, has got no force and is hereby dismissed with the above observations.