M.B.Sharma, J. - (1.) This is a Misc. Petition in which under challenge is the order dated 7th February, 1991 of the learned Munsif and Judicial Magistrate, Chirawa by which the learned Magistrate ordered that all the accused petitioners should be present before him on the next date of hearing. The necessary facts for the disposal of this application are these:- In respect of an incident alleged to have taken place on 3rd November, 1987, at about 5 P.M. a complainant was filed by one Narendra Kumar non-petitioner No. 2 in the court of Munsif and Judicial Magistrate, Chirawa. The allegations in the said complainant were that the houses of the complainant Narendra Kumar and the accused petitioners are situated in the same locality and adjoining each other. The relations between the parties were not cordial and according to the complainant on the date of the incident, the accused persons were making preparation for raising unauthorised construction over the common chowk. The complainant prevented the accused petitioners from making unauthorised constructions and made verbal appeal. The accused petitioners felt annoyed and they came to the house of the complainant and at the time, the accused petitioner Santosh is said to be having a knife in his hand and two other accused petitioners (ladies) Smt. Manju Devi and Smt. Kanta Devi are said to be unarmed. The accused petitioner Santosh is said to have caused injuries to the complainant by knife and the accused two ladies are also said to have caused injuries and caught hold of him. The learned Magistrate recorded statements of two eye witnesses under Section 202 Cr.P.C. and took cognizance of offence under Section 452, 323, 34 IPC and issued process for securing the attendance of all the accused petitioners. On an application moved on behalf of the accused petitioner before the learned Munsif the same was allowed and the personal appearance of the accused petitioners was exempted through their counsel. An application was moved by the complainant that at the time of evidence the accused persons should remain present in court as he and his witness should identify them. Before the learned Magistrate, on behalf of the accused petitioners, it was clearly stated that they will not object in respect of identity but still the learned Magistrate made the impugned order and ordered that the accused petitioners should be present in his court. It is not proper to say any thing about the merits of the case. Though it is stated by the complainant that the accused petitioner No. 1 Santosh Kumar was armed with a knife and caused injuries to him, but on medical examination, no injury by sharp weapon found on the person of the complainant. Be that as it may, when the learned Magistrate once exempted the personal appearance of the accused petitioners, though he had jurisdiction during the proceedings to order that they should be present in the court, but the discretion or jurisdiction must have exercised judicially and reasonably. In the instant case, it appear that the identity of the accused petitioners was not disputed and the two accused petitioners are ladies. Before the learned trial court as well as before this Court, the learned counsel has clearly stated that the accused petitioners will not raise any dispute in respect of identity. Therefore, only because the complainant wanted that the accused persons should be present in the court during the recording of the statements the learned Magistrate should not have ordered for their presence in the court. More so, the accused petitioner No. 1 is employed somewhere in U.P. and the other accused petitioners are ladies. The exercise of its discretion by the Magistrate in ordering that the accused petitioners should appear in his court does not appears to be reasonable and proper, rather to me, it appears to be the abuse of the process of the court.
(2.) Consequently, I hereby allow this Misc. Petition and set-aside the impugned order dated 7.2.1991 of the learned Munsif and Judicial Magistrate and the personal appearance of the accused petitioners shall remain exempted, unless for some reasonable grounds, the learned Magistrate orders otherwise in future.;