Rajasthan High Court - Jodhpur
Vishal Singh & Ors vs Smt Himani & Anr on 3 January, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1478 / 2017
1. Vishal Singh S/o Shri Bhanwar Singh @ Bhawani Singh, Aged
About 33 Years
2. Bhanwar Singh @ Bhawani Singh S/o Late Shri Balu Singh,
Aged About 58 Years
3. Smt. Vijay Laxmi W/o Shri Bhanwar Singh @ Bhawani Singh,
Aged About 53 Years, All by Caste Rawna Rajput, At Present
Resident of 56, Surya Nagar, Matki Chouraha, Paota C Road,
Jodhpur (Raj.)
----Petitioners
Versus
1. Smt. Himani W/o Shri Vishal Singh, D/o Late Shri Mahendra
Singh, Aged About 26 Years, By Caste Rawna Rajput,
Resident of Hathiram Ka Oda, Uparla Bas, Near Sankhla
Shishu Shala, Jodhpur (Raj.)
2. State of Rajasthan
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. P.C. Solanki
For Respondent(s) : Mr. D.S. Baghel
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 03/01/2018 Petitioners have laid this revision petition under Section 397 read with Section 401 Cr.P.C. to challenge order dated 29.11.2017, passed by Additional Sessions Judge (Women Atrocities Cases) Jodhpur Metropolitan (for short, 'learned appellate Court), whereby learned appellate Court has confirmed order dated 07.09.2017, passed by Additional Chief Metropolitan Magistrate No.6, Jodhpur Metropolitan (for short, 'learned trial Court').
(2 of 5) [CRLR-1478/2017] Succinctly stated the facts of the case are that first respondent-applicant filed a petition against petitioners (non- applicants) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, 'Act of 2005') before the learned trial Court. During trial, on behalf of respondent-applicant, her affidavit was tendered in the form of evidence instead of appearing personally in the witness- box. Feeling dismayed with the filing of affidavit, petitioners (non-applicants) submitted objection before the learned trial Court. In the application, it is, inter-alia, pleaded by petitioners (non-applicants) that proceedings under Section 12 of the Act of 2005 are akin to the proceedings under Sections 125, 126 and 127 Cr.P.C., and therefore, procedure for recording evidence in summons case is to be adhered to. With this sort of objection, the petitioners (non-applicants) have craved for rejecting evidence in the form of affidavit submitted by respondent-applicant. Learned trial Court, after considering the application in the light of Section 28(2) of the Act of 2005, rejected the application of petitioners.
Feeling dismayed with the order of learned trial Court, petitioners preferred an appeal under Section 29 of the Act of 2005 before the learned appellate Court but the said effort of the petitioners also proved abortive and the learned appellate Court rejected the appeal. While affirming the order of learned trial Court, learned appellate Court has also relied on sub-section (2) of Section 28 of the Act of 2005.
(3 of 5) [CRLR-1478/2017] Heard learned counsel for the parties and perused the material available on record.
At the outset, it would be just and appropriate to examine Section 28 of the Act of 2005 which lays down procedure for all the proceedings envisaged therein.
Section 28 of the Act of 2005 reads as under:
28. Procedure.--
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.
A bare perusal of sub-section (2) of Section 28 of the Act of 2005 makes it abundantly clear that the Legislature in its wisdom has conferred discretion on the Court to lay down its own procedure for disposal of an application under Section 12, or sub-section (2) of Section 23 of the Act of 2005. The language employed therein is also clear and unequivocal inasmuch as it starts with non-obstante clause and therefore for facilitating expeditious disposal of application under Section 12 and Section 23 of the Act of 2005 Court can evolve its own procedure. It is needless to observe here that the Act of 2005 is conceived to protect rights of women and protect them from atrocities and violence within the family.
(4 of 5) [CRLR-1478/2017] Domestic violence is widely prevalent in our Country and therefore to have a comprehensive legislation on the subject, the Act of 2005 came into offing. Sub-section (5) of Section 12 of the Act of 2005 also postulates that such application is to be disposed of with utmost promptitude, preferably within a period of sixty days from the date of its first filing. The remedies provided under the Act of 2005, which are essentially for protecting the rights of women and to prevent atrocious acts & violence against them within family, therefore, it is necessary and desirable to dispose of a petition under Section 12 as well as Section 23 of the Act of 2005 at the earliest. That being the reason, sub-section (2) of Section 28 of the Act of 2005 has conferred wide discretion on the Court to lay down its own procedure.
My view also finds support from a decision of Madras High Court in case of Lakshmanan Vs. Sangeetha (Criminal R.C. No.576/2009, decided on 12.10.2009), wherein the Court has observed:
"Though like Negotiable Instruments Act, in the Protection of Women from Domestic Violence Act, 2005, it is not specifically stated that the evidence may be given by the witness on affidavit, Section 28(2) provides for the deviation from the normal procedures as contemplated under the Code of Criminal Procedure, 1973.
As observed by this Honourable High Court in the decision cited supra, Section 145 of the Negotiable Instruments Act was introduced to reduce the time taken to complete the trial, wherein under this Act, as per Section 12(5) of the Protection of Women from Domestic Violence Act, the Magistrate shall endeavour to dispose of the application made under Sub-section (1) within (5 of 5) [CRLR-1478/2017] a period of sixty days from the date of its first hearing. As such, it is open to the Court in order to reduce the time of consumption for the proceedings, the Court may allow the chief examination of the witnesses to be furnished by affidavit, which is permissible as per Section 28(2) of the said Act."
In totality, the orders passed by both the Courts below, permitting first respondent to tender evidence in the form of affidavit, are neither illegal nor improper warranting interference in exercise of revisional jurisdiction. Moreover, evidence in the form of affidavit has also not prejudiced the cause of the petitioners inasmuch as they are well within their rights to cross-examine the deponent for impeaching the testimony.
The upshot of the foregoing discussion is that there is no illegality or impropriety in the impugned order warranting interference in exercise of revisional jurisdiction of this Court.
Consequently, revision petition fails and the same is hereby dismissed.
(P.K. LOHRA),J.
Bharti/103