Decided on June 10,1958

Anil Ranjan Sen Appellant
Smt. Anuprama Sen Respondents


J.N. Datta, J.C. - (1.)THIS reference has been made by the learned Sessions Judge and arises out of a proceeding under Section 488, Cr. P. Code, in which the learned Magistrate directed the husband (present petitioner) to pay a monthly allowance of Rs. 30/ - to his wife (present opposite party).
(2.)IT appears that the husband was not present on most of the hearings, in which evidence was recorded and was represented by his counsel, but there was no application made for dispensation of his personal attendance, nor is there anything else to snow "that such dispensation was in contemplation and was allowed by the first Court.
The learned Magistrate's attention was drawn to this lacuna in the course of arguments before him, as will appear from the concluding portion of his order but he overruled the contention, by merely stating that from the circumstances of the case, it is apparent that the second party was allowed to appear through pleader and it has by no means been prejudicial to the second party.

The circumstances on which he relied for this were not pointed out, and in his explanation also he has not stated any. His explanation on this point is that the husband was always represented by a pleader and proper examination and cross -examination of the witnesses was carried out by counsel. Therefore the defect might be a curable defect.

This is also the main point on which the learned Sessions Judge has made this reference. The fact that the husband was not present on several of the dates on which evidence was recorded and was represented by his counsel was also not disputed before me, and the question involved is two fold. First it has to be seen whether in these circumstances it can be deemed that exemption from personal attendance was impliedly granted, and if not, whether the proceedings are vitiated on account of the non -appearance in person of the husband.

(3.)AS already stated no application for exemption from personal appearance was ever filed and no such order granting exemption was ever passed, and it appears that no attention was paid to mis subject, most probably because all concerned proceeded under the impression that it was permissible for a party in such proceedings to appear by pleader.
This impression might have gained ground also due to the fact that although such proceedings are under the Criminal Procedure Code, the parties are not actually in the position of a complainant and an accused person. If the learned Counsel who appeared for the husband was aware of the necessity of personal attendance of his client from the very beginning then there is no reason why he did not apply for the exemption. Similarly if the Court was aware of it then there was nothing to prevent it from raising that question, and at least making an order on it in the order -sheet.

Thus it appears to be certain that the mind of the Court was not directed towards this question until the end, when all the evidence had been taken, and the case had reached the stage of arguments. Even then the Court could have re -opened the case and either insisted on the personal attendance of the husband or granted dispensation or proceeded ex parte.

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