- (1.)THIS is a reference by the learned Sessions Judge of Osmanabad for setting aside the proceedings under Section 488, Cr. P. C. which resulted in a maintenance of Rs. 100/- being awarded to the revision-petitioner's wife and four children. It appears that a petition was filed by Rukmini Bai, respondent, wife of the revision-petitioner on 26-7-1951 on behalf of herself and her four children alleging that the revision-petitioner though having sufficient means has been negligent and is refusing to maintain them. The revision-petitioner presented a petition through his vakil, Mr, Dattatreyarao on 25-8-1951, admitting Rukmini Bai to be his wife and the children to be his legitimate issues; but denying that he was either negligent or refused to maintain them. He further contended that he had insufficient means of livelihood. The proceedings show that notice was ordered to the respondent on 26th July under Section 488, Cr. P. C. and on the next date of hearing, i. e. , 10-8-1951, while the revision-petitioner's wife was present in person the revision-petitioner was present through his pleader. The court directed the filing of a counter. On 20th August again the wife was present in, person while the revision-petitioner was represented by his advocate. Another adjournment was given for filing the counter which was filed on the 25th August when both the parties were present in person. On the 18-9-1951 the parties were represented only by their Advocates and two wit- nesses were examined. On the next date of hearing the respondent was present but the case was adjourned. On the 24th the parties were represented by their Advocates but no evidence was recorded on that date. The evidence of one witness was, however, redded on the 14th November in the presence of the Advocates of the parties. Two Other witnesses were examined on the 21st December in the absence of the revision-petitioner. In this way almost all the witnesses for the wife ad the children, viz. , 5 of them, were nexamined in the absence of the revision-petitioner. On the next date of hearing the revision-petitioner was present, but he did not produce any witnesses and was given an adjournment. On the 21st January and 6th February, two witnesses of the revision-petitioner who were summoned did hot come, nor was the revision-petitioner present. On the 13th February one witness was examined in the absence of the revision-petitioner and the evidence in the case was closed.
(2.)THE advocate for the revision-petitioner con- tends that under Sub-section (6) of Section 488 the proceedings should be set aside inasmuch as the requirements of the Section have not been fulfilled. It is true that the Court has not made any order excusing the presence of the revision-petitioner, nor does it appear that it has directed its Blind to this question. Sub-section (6) of Section 488 enjoins that all evidence shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases; provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case 'ex parte'. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof. It has been decided in several cases that the trial and the taking of evidence in a case under Chapter 36 must be in the presence of the respondent or in the presence of his pleader where his personal presence is dispensed with. This direction in Sub-section (6) is peremptory and no presumption or inference could arise in the absence of either an application by the respondent for dispensing with his presence or the order of the court dispensing with such presence. It is evident from the proceedings extracted above that the revision-petitioner was not present when the evidence was recorded, being represented only by his Advocate. In order that the case should be brought under the proviso to Sub-section (6) of Section 488 the Magistrate should have satisfied himself that the revision-petitioner was wilfully neglecting to attend the Court, before he could proceed with the case ex parte. From the record no circumstances appear from which one can infer that the Magistrate has fever considered this aspect of the case or that he was satisfied that the revision-petitioner was wilfully absenting himself. In these circumstances the mandatory provisions of Sub-section (6) have hot been complied with.
(3.)THE learned Advocate for the respondent wife has drawn my attention to an unreported judgment dated 7-7-1953 in - 'venkatarao v. Tulsibai', Revn. No. 531 of 1952-53 (A) (Single Bench) where it was held on the authority of - 'abdul Rahman v. Emperor', 54 Ind Cas 96 (the reference is wrong - it is '54 Ind App 96 : AIR 1927 PC 44 (B)') and on the analogy of the provisions of Section 360, I. Cr. P. C. that the omission to examine wit-nesses in the presence of the respondent is a mere irregularity and that inasmuch as no failure of justice was occasioned, the judgment of the trial Magistrate was not set aside. I have gone through the judgment of the Privy Council in the above referred case and it appears to me, with the greatest respect, that the analogy of that case which was based on Section 360 and particularly on the facts of that case cannot be applied to the facts of this case or to non-compliance of the provisions of Sub-section (6) of Section 488. In the aforesaid Privy Council case the appellant was convicted by a District Magistrate on a charge of abetment of forgery. At the trial the depositions of witnesses were read over to them while the case otherwise proceeded, and those of some witnesses were handed to them to read to themselves. It was argued that since some of the depositions were not read over, the trial was bad and the conviction should be set aside. The Privy Council held that no inaccuracy in the deposition was suggested and as such there was no actual or possible failure of justice inasmuch as the object of the section was to secure an accurate record from the witness of what he meant to say, and not to enable the accused or his pleader to suggest corrections. Their Lordships observed at p. 47:
. . . a careful study of the sections will show that the object of reading over the deposition is to obtain an accurate record from the witness of what he really means to say, and to give him an opportunity of correcting the words which the Magistrate or his clerk has taken down. It is not to enable the accused or his advocate to suggest corrections.
Dealing with the enabling and curing Section 537 and the case of - 'subramania Iyer v. King Emperor' 28 Ind App 257 (PC) (C), their Lordships observed at p. 49:
. . . The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.
In the aforementioned case of - 'subramania Iyer v. King Emperor' (C), Lord Chancellor (Halstaury) delivering the judgment of the Board in a case where the accused was tried of an indictment in which he was charged with no less than 41 acts extending over a period of two years, contrary to the provisions of Section 234, Criminal P. C. which provided that a person may only be tried for three offences of the same kind within a period of 12 months, observed:
. . . Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity.
The object of Sub-section (6) of Section 488 requiring evidence to be taken in the presence of the respondent is similar to that provided in Section 353 of the Code, viz. , that except as otherwise expressly provided all evidence taken under Chapters 18 (enquiry into cases triable by Sessions Judge or High Court), 20 (trial of summons cases by Magistrates), 21 (trial of warrant cases by Magistrates) 22 (summary trials) and 13 (trial before High Court and the Court of Session), shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader, These aforesaid provisions enact a general principle of law that all evidence in enquiries and trials or proceedings should be taken in the presence of the accused unless the presence of the accused under certain circumstances is dispensed with under Sections 205, 540-A or under Sub-section (6) of Section 488 in which case evidence shall be taken in the presence of his pleader. Section 353 as well as Sub-section (6) of Section 488 are imperative in that all evidence shall be taken in the presence of the accused or the respondent or in certain circumstances in the presence of their pleader. In my view, it cannot, therefore, be said that the proceedings against the revision-petitioner were conducted in accordance with the procedure laid down by the provisions of the Code relating to the mode in which the trial should take place. The Code having enacted positively that evidence should be taken in a certain way, it cannot be contended that the contravention of this express provision can be described as an error, omission or irregularity within the meaning of Section 537. The inhibition under Sub-section (6) of Section 488 or under Section 353 is of the class referred to by their Lordships of the Privy Council in '28 Ind. App. 257 (P. C.) (C)'. The action of the accused in not objecting to the evidence subsequently or the fact that his pleader did not raise any objection at the time when the evidence was recorded, cannot cure an irregularity which goes against the fundamental principles of criminal jurisprudence, that all evidence, subject to the provisions of the Code, should be taken in the presence of the accused. It is an irregularity, in my view, not curable under the provisions of Section 537 and would vitiate the trial or proceedings. In these circumstances I set aside the order of the Magistrate and direct that the evidence be recorded in accordance with the provisions of Sub-section (6) of Section 488.