- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1331 OF 2008 WRIT PETITION NO.1331 OF 2008 WRIT PETITION NO.1331 OF 2008 Mrs.Shilpa Narendra Telavane ...Petitioner vs. Mrs.Kumud Mahadev Bapat & Ors. ...Respondents Mr.S.D.Patil i/b Mr.Prashant Jadhav for the Petitioner Mr.D.P.Adsule, A.P.P. for State Ms Medha Bapat Respondent No.1 in person present. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 29,2008 : JULY 29,2008 : JULY 29,2008 P.C.: P.C.: P.C.: 1. Heard the Advocate for the Petitioner and the first Respondent appearing in person. Filing of this petition could have been avoided had the learned Magistrate adopted a pragmatic or practical approach. 2. The Petitioner is the first informant. The petitioner entered the witness box and her evidence running into 35 to 40 pages has already been recorded. The learned Judge who was holding the post of the Judicial Magistrate (First Class), Court No.11, Thane before whom the evidence was recorded was transferred to the post of the Judicial Magistrate (First Class), Court No.10, Thane. The court room of the said court is located on the second floor of the court building. As the case was part heard before the learned Judge who was earlier holding the post of Judicial Magistrate (First Class), Court No.11, Thane, the case remained before him even after his transfer. The case of the petitioner is that she is in - 2 - advanced stage of pregnancy and that she was medically advised not to climb the staircase. Therefore, she could not attend the court which was located on the second floor. All this resulted into the learned Judge issuing non bailable warrant against the petitioner. The petitioner was advised to file an application for transfer before the Sessions Court. The said application was rejected on the ground that the case was part heard before the learned Judge. During the pendency of this petition, an application made by the petitioner for cancellation of the warrant was dismissed by the learned Magistrate. It will be necessary to refer to what is observed by this court in paragraph 4 and 5 of the order dated 21st July 2008. Paragraph 4 and 5 read thus ; "4) The fact that the Petitioner had earlier appeared as a witness and her evidence has been substantially recorded does not appear to be in dispute. It is also not in dispute that the learned Judge who was hearing the case was transferred as Judicial Magistrate (First Class), 10th Court, Thane and he started sitting in a Court room on the second floor. The Petitioner appears to be in advanced stage of pregnancy as reflected from the averments made in the petition. The case of the Petitioner is that she has been advised not to climb the staircase. This is reflected from the certificate issued by the Civil Hospital, Thane. When an application for cancellation of warrant was rejected by the learned - 3 - Magistrate, the said certificate was very much before the learned Magistrate. Primafacie, it appears to me that the approach adopted by the learned Magistrate was very strange. This was not a case where the witness had not appeared earlier. The fact remains that the witness has attended court earlier. The case of the Petitioner is that she was unable to climb the staircase. The learned Judge could have sought permission from the learned Sessions Judge to temporarily hold the court on the ground floor or the learned Judge could have taken recourse to recording evidence by video conference. It appears to me that a very harsh view has been taken by the learned Judge. 5) The first Respondent-accused appears and states that the certificates issued by Dr.Paradkar which are annexed to the Petition do not specifically record the advice that the Petitioner should avoid climbing a staircase. The learned counsel for the Petitioner states that the Petitioner will get herself examined from Dr.Paradkar and will submit a proper certificate." 3. Now a reliance is placed on a certificate dated 21st July 2008 issued by Dr.G.V.Paradkar. A xerox copy of the said certificate has been produced along with the Affidavit. The said certificate records that the petitioner is in advanced stage of pregnancy and in view of her condition, she should - 4 - not climb the staircase as far as possible. The first respondent-accused appearing in person states that the said certificate is a bogus certificate. 4. Apart from this certificate, the Petitioner had produced a certificate of a Medical Officer attached to V.S.General Hospital, Thane which also records the same advice. As the first Respondent-accused insisted that the petitioner should get herself examined by the Dr.Paradkar, the petitioner got herself examined by the said Doctor and has produced a xerox copy of the certificate dated 21st July 2008 along with affidavit. The original is produced for the perusal of the Court. Considering the limited scope of this petition, the certificate dated 21st July 2008 deserves to be accepted. 5. This is a case where the petitioner has deposed before the learned Judge. There does not seem to be any dispute that the petitioner is in advanced stage of pregnancy. There is also no dispute that the court room of the learned Judge is located on the second floor of the building. The certificate issued by the Medical Officer attached to V.S.General Hospital was produced before the learned Judge. It must be stated here that the learned Judge has taken a harsh view of the matter. There were more than one option available before the learned Judge. The learned Judge could have requested the learned Sessions Judge for grant of permission to hold the sitting of the court on the ground floor for recording the evidence of - 5 - the said witness. The other option was to record the further evidence of the petitioner by video conference and the third option available was to postpone the evidence for a reasonable time. However, pragmatic approach was not adopted by the learned Judge which ultimately led to filing of the present petition. 6. It is obvious that non bailable warrant issued by the learned Judge against the petitioner will have to be cancelled. The learned Judge will have to adopt one of the three options which are indicated above. The learned Judge will have to pass appropriate order in that behalf after hearing the parties. It is obvious that till the learned Judge decides the mode to be adopted for recording the evidence of the petitioner, he will not insist on the personal presence of the petitioner in the court room which is located on the second floor of the court building. 7. Hence, I pass the following order : i) The order dated 2nd July 2008 passed by the learned Magistrate is quashed and set aside. ii) Non bailable warrant issued against the petitioner is cancelled. iii) It will be open for the learned Judge to request the - 6 - learned Sessions Judge for grant of permission to hold the sitting of the court on the ground floor for recording the evidence of the petitioner. It will be also open for the learned Judge consider the possibility of recording of evidence by video conference. If both the options are not available or feasible, the learned Judge will have to postpone the recording of the evidence of the petitioner for a reasonable time to enable the Petitioner to appear before him. iv) The learned Judge will pass an appropriate order in that behalf. It is made clear that unless appropriate order is passed in that behalf, the learned Judge will not insist on personal presence of the Petitioner. v) Parties and the concerned Court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE