ORDER P.N. Bakshi, J.
1. This is a reference by the II Additional Sessions Judge Etawah for quashing the order of the Magistrate dated 9.11.1970 permitting the complainant to apply for the issue of commission for recording the evidence of the prosecution witnesses in the village of the accused two of whom are pardanashin ladies.
2. One Srimati Bitto filed a complaint on 27.11.1967 against Rameshwar Dayal his wife and his daughter-in-law for their prosecution for offences under Sections 323 and 452 I.P.C. According to the allegations in the complaint there was a dispute over a parnala between the complainant and the accused. On 26.10.1967 at about 7 A.M. when the complainant was alone in the house the wife (accused No. 2) and daughter-in-law accused No. 3 of Rameshwar Dayal are alleged to have come inside the cattle-shed of the complainant and tried to close the parnala. There was a scuffle between the ladies. Rameshwar Daval accused No. 1 is alleged to have reached there and to have brick-batted the complainant. The complainant raised an alarm which attracted Bachchu Maharam, Ram Autar, Jabar Sinsh and others on the scene of the occurrence. These witnesses ore alleged to have saved the complainant from further beating. When the complainant's husband returned from the fields she is alleged to have related the entire incident to him. Subsequently at about 10 A.M. the same day the complainant is alleged to have lodged a report at police Station Bakewar but as the police did not take any action, hence the present complaint was filed by Srimati Bitti Devi on 27.11.1967.
The statement of the complainant was recorded under Section 200 Cr.P.C. thereafter Maharam and Jabar Singh were examined under Section 202 Cr.P.C. The Magistrate finding that there were sufficient grounds for proceeding summoned the accused on 10.1.1968. Thereafter the two ladies accused applied to the Magistrate for exemption from personal attendance under Section 205 Cr.P.C. This application was allowed by the Magistrate First Class. Etawah by his order dated 13.12.1969. The learned Magistrate held as follows:
...I think that it is expedient in the interest of justice their personal attendance be exempted at present and they be permitted to appear by their counsel.
Thereafter the case proceeded Srimati Bitti Devi the complainant, examined herself on 3rd October 1970. In her statement she has stated as follows:
Main nav chill Pukar ki to meray gaon kay Tej Singh, Vishwanath, Bachchu, Kachhi Rajarm aagayay aur koyee nahin aaya.
On 9.11.1970 one Asharfi was examined as P.W. 2. This witness claimed to have seen the occurrence. His statement was partly recorded. He stated:
Jo aurat parnala bund karnay say mana kar rahi thi woh Bahadur Singh ki aurat thi aur jo auratain yeh keh rahi thin ki parnala bund karna hai unhain main samnay aanay per pehchan sakta noon.
At this stage an application was filed on behalf of Srimati Bitti Devi. It was prayed therein that the further examination of Asharfi P.W. 2 should be staved and the two ladies accused should be directed to be produced in Court so that they may be identified by Asharfi P.W. On this application the learned Magistrate passed the impugned order dated 9.11.1970 by this order the learned Magistrate impliedly declined to summon the two pardanashin ladies, but he directed that if the prosecution so desired it could apply for the issue of a commission for examining the witnesses in the village where the ladies accused reside, so that they could also be identified there. The complainant applied to the Court for time for going up in revision against the order of the Magistrate and the proceedings before the Magistrate were staved till 15.12.1970. The complainant, thereafter filed a revision before the IInd Additional Sessions Judge Etawah and got the proceedings before the Magistrate staved till the disposal of the case. The II Additional Sessions Judge has made a reference to this Court for quashing the order of the Magistrate dated 9.11.1970.
3. I have heard counsel for the parties and have also perused the record of the case. I am not inclined to accept this reference for a number of reasons. The learned Sessions Judge while making this reference has considered Section 503 Cr.P.C. He has mentioned that Section 503 Cr.P.C is applicable only in those cases where the examination of a witness is necessary for the ends of justice. The Sessions Judge observes that it is only in a case when the attendance of a necessary witness cannot be procured by any Court it may issue commission for the examination of such witness (after dispensing with his personal attendance). This section does not contemplate the contingency of issuance of commission for recording the evidence when the accused persons cannot attend the Court personally (for whatever reason it may be). It is for the convenience of the witness only and not for the convenience of the accused, that this section enables a Court for recording the formers' evidence." It is true, that Section 503 empowers a Court to issue a commission for the examination of necessary witness in the ends of justice whose attendance cannot be procured without undue delay, expense or inconvenience which in the circumstances of the case would be unreasonable. But in the facts of the present case there are several factors which have to be taken into consideration.
As already mentioned above personal attendance of the two ladies accused had been exempted by order of the Magistrate dated 13.12.1969. A perusal of the complaint shows that Srimati Bitti Devi had named Bachchu, Maharam. Ram Autar and Zabar Singh as eve-witnesses of the occurrence. In her statement before the Court which was recorded on 3.10.1970 which I have quoted above, clearly shows that Tej Singh, Vishwanath, Chhabinath, Bachchu and Kachchi Raja Ram were the only persons who had come to the scene of occurrence when Srimati Bitto raised an alarm. She has specifically stated "Aur Koyee nahin aaya." After this statement Asharfi is produced as P.W. 2 in the case. He is neither named as an eve-witness in the complaint, nor he is mentioned by Srimati Bitti Devi in her statement as an eve-witness, vet I find that Asharfi has been produced as P.W. 2 in the case obviously with oblique motive. He has come forward to state that he does not know the two ladies accused but he can identify them if they are produced before the Court. To my mind, this is an effort being made on behalf of the prosecution to circumvent the order of the Magistrate granting exemption to the two ladies accused under Section 205 Cr.P.C. The intention seems to be to harass and insult these pardanashin ladies by forcing them to come to Court. It is true that under Section 205(2) Cr.P.C. the Magistrate enquiring or trying a case may in his discretion at any stage of the proceedings direct the personal attendance of the accused. But it is important to bear in mind that even on the 9th November 1970 when the present application was moved on behalf of the complainant for summoning the accused in Court the Sub-Divisional Magistrate did not accede to that request. He was not prepared to summon these ladies. In short he was not prepared to pass an order in favour of the complainant under Section 205(2) Cr.P.C. so as to compel the Pardanashin ladies to appear in Court. In the very commencement of the impugned order the learned Magistrate has said that it was in the interest of justice that he has passed the said order. The choice was given to the complainant to apply for the issue of a commission for the examination of his witnesses in the village of the ladies accused. To my mind, this is a very fair I just and equitable order and I would be loathe to set it aside on mere technicalities. Moreover, the complainant has not yet applied for the issue of a commission and no final order has vet been passed. The complainant may not at all apply for the issue of a commission and may choose to proceed with his evidence in Court. Be that as it may the impugned order, in my opinion, does not call for any interference.
4. It is argued by the counsel for the complainant that the accused is not a witness and no such order as has been passed by the learned Magistrate can legally be made under the provisions of Section 503 Cr.P.C. It is important to note here in this connection that the impugned order is not for the examination of the accused but it is only for the examination on commission of the prosecution witnesses. In a case reported in AIR 1914 Cal 479 : 15 Cri LJ 348 Abhoveswari v. Kishori Mohan Banerjee a commission was issued for the examination of the complainant under Section 200, Cr.P.C. At that stage when the commission was issued the complainant could not be said to be a witness, vet we find that in the interest of justice such a commission was in fact issued. Further with the amendment of the Criminal Procedure Code and the addition of Section 342-A an accused person is a competent witness. If he so chooses, he may give his evidence on oath. Without, however, expressing myself finally on the scope of Section 503 Cr.P.C. I feel no hesitation in exercising my inherent powers under Section 561-A Cr.P.C. to uphold the order of the Magistrate which is eminently lust and equitable.
5. Having regard to all the facts and the circumstances of the case, which I have mentioned above. I am of opinion that the application filed on behalf of the complainant on 9.11.1970 for the production of the pardanashin ladies whose presence has been exempted by the Magistrate is mala fide and in order to prevent the abuse of the process of the Court, as also to secure the ends of justice. I am of opinion that the order of the Magistrate must be upheld.
6. I. therefore, reject this reference made by the II Additional Sessions Judge Etawah dated 9.7.1971.