@Givemeabreak, the issue you raised is being faced by several accused who are embroiled in legal tussle with the wife and are facing criminal cases, like Section 498-A and Section 3&4 of D.P. Act and in some cases some mild sections of IPC. The criminal law stipulates a condition that the cross examination of prosecution must be held in the presence of accused. This is a fair procedure so that the accused cannot blame the judicial system at a later point of time that the evidence has been taken behind his back. But this very same salutory provision is hurting several accused - whether they are innocent or nocent - is not the quetion. There are several accused like you, who earn their bread by hardworking and if court insists their continuous presence to carry out the above said salutary provision, in fact, it is infringing the very fundamental right of the accused to earn his livelihood and live a decent life. So, proper law should be that if the accused has got full faith in his counsel and says to the court that my counsel will appear at the time of the evidence (examination-in-chief as well as cross-examination) of the prosecution and I have full faith in him and I will not raise any challenge after the verdict is delivered by the court on the ground that the evidence has been taken behind my back and kindly exempt me to appear on every date of hearing. The court should allow such plea. Otherwise, it amounts to harassing the accused and also co-accused before they are convicted of the crime and also infringes their fundamental right to earn their livelihood. This proposition should be followed by the criminal courts in simple criminal matters, where the punishment is less than 5 years and this principle cannot be used in cases of rape, robbery and murder. Unfortunately, as your case is before the Magistrate, he is not empowered in law to pass such orders including permanent exemptions also once evidence starts. So, the proper course of action in such matters is to approach the hon'ble High Court under Section 482 Cr.P.C. seeking to give such direction to the magistrate to exempt the accused to appear in criminal proceedings except on the date when he gives his own evidence. What I suggest you is to approach the HC taking the point what I delved upon in larger and broader perspective. If it is possible gater 5 to 10 people facing similar situation and file a combined petition in the H.C. so that not only yourself, several young people, who have been facing S.498-A cases and are forced to leave their jobs abroad and also other stations within the country to meet the needs of absurd criminal procedure system, which harasses the accused before conviction. I hope and wish this shall be taken up in the High Court in large public interest.
Prabhakar(Advocate)
(M)9958670740
Legal Aid Panelist - Family Law-Central Delhi (Tis Hazari)
