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Criminal Reference No. 279 of 1961, decided on 26th September 1961.

S. 205‑Exemption from personal appearance of accused in Court‑Female accused seeking exemption on ground of purdah observance and allegation that their names mentioned as accused in complaint in order to harass and belittle them‑No strong case against accused shown to exist Order of Magistrate rejecting application for exemption set aside.

Crown v. Mahomed 3 S L R 167 ; Emperor v. Mst. Zalikhan 7 S L R 40 and Mst. Asu and another v. Emperor A I R 1931 Sind 37 rel.

Shamsuddin for A. A.‑G. for the State.

Sh. Rehman Bakhsh for Respondents Nos. 1 and 2.

Nemo for Respondent No. 3.

Dates of hearing : 25th and 26th September 1961.

This is a reference under section 438, Cr. P. C. made by the 11 Additional Sessions Judge, Hyderabad (Mr. Hamidali Memon) recommending that the order dated 29‑11‑1960 of the S. D. M., Hala, rejecting the application of respondents 1 and 2 under section 205, Cr. P. C. be set aside and that the respondents be granted the exemption they have applied for under section 205, Cr. P. C., and that they may be allowed to appear in Court through their Advocate.

The facts, so far as they are relevant for the purposes of disposing of this reference, are these:

On 26‑10‑1960 one Mitho filed a complaint in the Court of the S. D. M., Hala, under section 342, P. P. C. against one Loung alleging that the said Loung wrongfully confining Mst. Raji who is the daughter of the maternal‑uncle of the complainant Mitho. The complainant Mitho had also applied for a search warrant which was executed on 23‑10‑1960 and the woman Mst. Raji was produced before the S. D. M., Hala the next day, 24‑10‑1960. On 28‑10‑1960 Loung filed a complaint in the same Court against Mitho and four others including the present two respondents under sections 498, 366, 497 read with section 109, P. P. C. The learned Magistrate, after receiving this complaint, put it off to 29‑10‑1960 for want of time. On this day the learned Magistrate recorded the statement of the complainant Loung and also examined two witnesses : Muhammad Hassan and Pir Bux under section 202, Cr. P. C. in the course of the preliminary inquiry held by him. Thereafter the learned Magistrate issued bailable warrants in the sum of Rs. 2,000 against the three male accused and he also issued summonses against the two female accused namely, the present two respondents, and adjourned the case to 10‑11‑1960. On that day two of the male accused Hayat and Dino were present in Court and were released on bail whereas the bailable warrant issued against Mitho had returned unserved. A non‑bailable warrant was ordered to issue against him. The summonses issued against the female accused namely, these two present respondents ; had also returned unserved, but the learned Magistrate instead of directing the issue of fresh summonses against these two women, issued bailable warrants in the sum of Rs. 500 against each of them and postponed the case to 29‑11‑1960. In the meanwhile, on 14‑11‑1960 an application under section 205, Cr. P. C. was submitted to the learned Magistrate by an Advocate on behalf of these two respondents praying for their exemption from personal appearance in Court and for leave to permit them to appear through their Advocate on the ground that they are pardah nashin ladies and according to the custom prevailing in their community they do not move out in public. They also urged that their names had been mentioned as accused in the complaint in order to harass and belittle them. On this application for exemption the learned Magistrate first passed an order that it should be put up for consideration on the date of hearing of the case namely, 29‑11‑1960, and on that day he passed the undermentioned order:

"Rejected as they are deliberately trying to be absent from the Court. Since Mst. Raji who is also a relation of these ladies was not observing pardah while she was produced before me, it is not believable that these ladies can be pardah observing."

Against this order a revision application was preferred on behalf of these two ladies to the Court of Session, Hyderabad, and after hearing this revision application the Additional Sessions Judge, has made the present reference to this High Court.

Mr. Shamsuddin appearing on behalf of the State supports this reference. Mr. Shaikh Rahman Bakhsh, Advocate appearing on behalf of the two respondents, has pointed out that there is no substance in the two grounds mentioned by the trying Magistrate in his order rejecting the application for exemption. The first of these grounds is that the two female accused are deliberately trying to be absent from the Court. Their Advocate has pointed out that the summonses against these two female accused were issued in the first instance. on 29‑10‑‑1960 returnable on 10‑11‑1960, and that at the hearing on 10‑11‑1960 it was found that these summonses had returned unserved. In so far therefore as these summonses had not reached his two clients, it could not be said that they were deliberately absenting themselves from the Court. The second ground mentioned by the S. D. M., Hala, in his order rejecting the exemption application is that since Mst. Raji, who is also a relation of these ladies, was not observing pardah when she was produced before this Magistrate on 24‑10‑1960, it is not believable that these ladies can be pardah observing. In regard to this ground the defence Advocate has pointed out that in the first instance the learned Magistrate is importing knowledge of facts derived from a previous case which he is not permitted to do. This argument of the learned defence Advocate is not substantial but his second argument that when Mst. Raji appeared before the Magistrate on 24‑10‑1960 she appeared in police custody in response to a search warrant under section 100 and therefore she did not voluntarily appear before the Magistrate on 24‑10‑1960 is substantial. Besides, it is also urged by the learned defence Advocate that even though Mst. Raji and the present two respondents belong to the same community it does not necessarily follow that all the ladies of one community follow the same rule regarding the observance of pardah. I agree with this contention of the learned defence Advocate and I feel that the learned Magistrate's second ground for rejecting the application based upon the previous appearance in his Court of Mst. Raji is not a valid ground.

Mr. Shaikh Rehman Bakhsh has also invited my attention to three previous cases of the former Court of the Judicial Commissioner of Sind reported in Crown v. Mahomed (3 S L R 767), Emperor v. Mst. Zalihhan (7 S L R 40) and Mst. Asu and another v. Emperor (A I R 1931 Sind 37). I have seen these rulings and I consider that they are very much in point and apply to the facts of this case.. In A I R 1931 Sind 37 a Bench of the Court held:

"Where, therefore, the complaint so far as the female accused are concerned does not disclose a strong case against them and there is nothing on record to show that the accused are wives of cultivators or even if they are wives of cultivators, they are not precluded by custom prevailing amongst them from appearing in Court, it is a fit case in which the Magistrate should exercise his powers under section 205."

In this case too the learned defence Advocate has pointed out that there is no strong case against the present two respondents for the reason that the allegation contained in the complaint of Loung namely that these respondents with others had on 23‑10‑1960 taken away his wife Mst. Raji is not a correct statement of fact because on that‑day viz. 23‑10‑1960, Mst. Raji was, as mentioned above, carried away by the police in obedience to the search warrant issued on the complaint of her first cousin Mitho.

In view of what I have stated above I have reached the conclusion that this reference must be accepted. The order of the S. D. M., Hala, dated 29‑11‑1960 must be set aside and the respondents should be permitted to appear in Court through their Advocate.

Reference accepted.

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