Telangana High Court
Dayawar Narmada vs The State Of Ap., 2 Others on 29 November, 2021
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.8574 of 2013
ORDER:
This petition is filed by the petitioner-de facto complainant under Section 482 Cr.P.C. to quash the order dated 14.06.2013 in Crl.M.P. No.537 of 2013 in CC No.96 of 2012 passed by the Judicial Magistrate of First Class, Special Mobile, Nizamabad in dismissing the application filed by her under Section 284 (2) Cr.P.C.
2. The petitioner was the de facto complainant in CC No.96 of 2012 on the file of the Judicial Magistrate of First Class, Special Mobile, Nizamabad. On 25.08.2008 she filed a complaint with the police, Town III, Nizamabad stating that on 23.08.2008 at 10.00 AM the respondents No.2 and 3 - A1 and A2 along with teachers and staff of Arabindo Public School along with other persons attacked on her house by entering into her house, erected a tent in front of her house, threatened her and abused her husband in filthy language and shouted that they were cheated by her husband in selling the land. Apprehending danger to her life and to the life of her husband, she lodged a complaint to the police on 25.08.2008 at 5.00 PM. The police registered the same as Crime No.195 of 2008 for the offences under Sections 448, 290 and 506 IPC and after investigation, filed charge sheet against the respondents 2 and 3 for the above offences. The Judicial Magistrate of First Class, Special Mobile at Nizamabad had taken cognizance of the offences, numbered the same as CC No.96 of 2012. During the course of trial, the petitioner filed a Dr.GRR,J 2 CrlP.No.8574 of 2013 petition under Section 284 (2) Cr.P.C. vide Crl.M.P. No.537 of 2013 to examine her by appointing a Commissioner to record her evidence as she was unable to move due to her medical condition and enclosed medical certificate. The said application was dismissed by the learned Judicial Magistrate of First Class, Special Mobile, Nizamabad, vide order dated 14.06.2013 (impugned order) on the ground that the medical certificate issued by the doctor would not disclose that the de facto complainant was disabled forever and ever and she could not under any circumstances come to the Court personally to depose, the said medical certificate would only disclose a temporary disability of the de facto complainant therefore, there was possibility of her to come and give evidence in the open Court.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. There is no representation for respondents No.2 and 3 - A1 and A2.
4. Learned counsel for the petitioner submitted that on the date of alleged offence, the petitioner fell down and became unconscious. She was taken to hospital. She was suffering from several ailments. On receipt of summons, she infact intended to give evidence, but her health did not permit her. She was seriously suffering from chronic rheumatic heart disease, hypertension and chronic recurrent arthritis. She was suffering from several diseases for the past several years and a medial certificate was issued by Dr. DLN Swamy. Though the request made by the petitioner was genuine, justified and supported by Dr.GRR,J 3 CrlP.No.8574 of 2013 the medical certificate issued by Dr.DLN Swamy, the learned Magistrate failed to grant relief. The petitioner was ready to meet the expenses for issuing Commission for examining her. Having put the law into motion, it was the duty of the petitioner to depose in the above crime as prosecution witness. To avoid any unforeseen deterioration of health condition of the petitioner, the trial Court ought to have appointed an Advocate Commissioner for examining the petitioner and prayed to set aside the order of the Judicial Magistrate of First Class, Special Mobile, Nizamabad, in Crl.M.P. No.537 of 2013 in CC No.96 of 2012 dated 14.06.2013.
5. Learned Public Prosecutor reported no objection for allowing the petition.
6. Perused the record. Chapter XXIII - B Cr.P.C. deals with Commissions for the examination of witnesses and as per Section 284 Cr.P.C. the attendance of the witness can be dispensed with and commission can be issued. The Section is extracted hereunder for perusal:
284. When attendance of witness may be dispensed with and commission issued.
(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the Dr.GRR,J 4 CrlP.No.8574 of 2013 examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice- President of India or the Governor of a State or the Administrator of a Union territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.
7. The petition is filed by the complainant, who lodged the police report. Her evidence is required to prove the contents of the complaint given by her and to mark the same. She was stating that she could not attend the Court due to her medical problems and filed a medical certificate in support of the same. The counter filed by the respondents No.2 and 3 - A1 and A2 would not disclose that they were denying that she was suffering with such medical problems. The Court ought to have allowed the petition. The provisions under Section 284 Cr.P.C. also would disclose that whenever the attendance of a witness cannot be procured with, without causing inconvenience to the witness, the Magistrate may dispense with such attendance and may issue a Commission for the examination of the witness in accordance with the provisions of the Chapter.
8. As the petitioner is ready to meet the expenses for issuing Commission, the petition ought to have been allowed. Though it was not common to issue commissions in criminal cases and ordinarily the Dr.GRR,J 5 CrlP.No.8574 of 2013 witnesses are examined in the open Court only, however, in cases where the witnesses were unable to attend the Court, to meet the ends of justice, a provision is provided in the Criminal Procedure Code for their examination by way of Commission. Considering the medical condition of the petitioner and as she might have become even older after this long gap of time and due to the ailments sustained by her, her health condition might have been further deteriorated and considering the pandemic situation and as it is also not advisable for the senior citizens to attend the public places, it is considered fit to set aside the impugned order, and to allow the petitioner to be examined by way of Commission.
9. In the result, the Criminal Petition is allowed setting aside the order dated 14.06.2013 passed in Crl.M.P. No.537 of 2013 in CC No.96 of 2012 by the Judicial Magistrate of First Class, Special Mobile, Nizamabad. The Court below is directed to appoint an Advocate Commissioner in accordance with law. The petitioner is directed to meet the Advocate Commissioner's fee for examining her on the date fixed by the Court.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J November 29, 2021 KTL