Rajasthan High Court - Jaipur
Manisha Devi vs State Of Rajasthan And Anr on 27 July, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Misc. Petition No. 3298/2016 Manisha Devi vs. State of Rajasthan & Anr. Date of Order:- 27th July, 2016 HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Mr. Keshav Agarwal, for the petitioner. Mr. Jitendra Shrimali, Public Prosecutor for the State.
The present petition has been filed under Section 482 Cr.P.C. seeking quashing of cognizance order dated 1.9.2015 passed by the court of Additional Chief Metropolitan Magistrate No.20, Jaipur Metropolitan, Sanganer.
The star argument raised by the learned counsel for the petitioner is that wife cannot be prosecuted for the offence of adultery. The learned counsel for the petitioner has urged that Sectioin 497 IPC specifically says that man who enticed away the woman is to be prosecuted.
A perusal of the impugned order further reveals that it is specifically noted therein that the petitioner had caused slaps and fists blows to the complainant. Thus, the offence under Section 323 IPC is prima facie made out. The petitioner has already been released on bail. In these circumstances, a direction is issued to the trial court to apply its mind at the time of framing charges whether the provisions of Section 497 IPC are attracted against the petitioner after considering law laid to the effect that a woman cannot be charged for the offence under Section 497 IPC.
Needless to say that if such an argument is raised before the trial court, the trial court shall examine the legal issue threadbare and thereafter shall pass speaking order.
The learned counsel for the petitioner has submitted that at the intance of the petitioner, the husband is also being prosecuted under Section 406 and 498A IPC. The learned counsel for the petitioner has fairly stated that the said complaint was filed by the petitioner wife after filing of the present complaint.
Taking into account the matrimonial dispute and the fact that prima facie offence under Section 323 IPC is made out against the petitioner, this Court is of the view that the personal appearance of the petitioner can be exempted.
Consequently, with the observations made above, the present petition is disposed of by exempting personal appearance of the petitioner before the trial court subject to the following condition:-
(i) That the petitioner shall file an undertaking before the trial court specifying in the said undertaking that she shall appear before the court at the time of framing of charges, recording of statement under Section 313 Cr.P.C. and at the time of delivery of the judgment;
(ii) That the petitioner shall also specify in the undertaking that evidence recorded in her absence but in the presence of her counsel shall be binding upon her.
(iii) That the petitioner shall also specify in the undertaking that she shall appear before the trial court as and when trial court direct her to do so.
(KANWALJIT SINGH AHLUWALIA)J. Mak/ 20