Delhi District Court
Sunaina Mittal vs Rishi Mahajan on 12 January, 2023
IN THE COURT OF SHRI CHANDER MOHAN
ADDITIONAL SESSIONS JUDGE7, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 56 of 2022
IN THE MATTER OF:
Sunaina Mittal
D/o Sh Arun Kumar Mittal,
W/o Rishi Mahajan,
R/o G118/7, Krishna Nagar,
Safdarjung Enclave,
New Delhi.
.......Appellant
Versus
1.Rishi Mahajan
S/o Anil Mahajan,
R/o H229 Shastri Nagar,
Meerut, Uttar Pradesh.
2. Anil Mahajan
S/o Late Sh Charan Mahajan,
R/o H229 Shastri Nagar,
Meerut, Uttar Pradesh.
3. Smt Seema Mahajan
W/o Anil Mahajan,
R/o H229 Shastri Nagar,
Meerut, Uttar Pradesh.
4. Ravi Mahajan
S/o Anil Mahajan
R/o H229 Shastri Nagar,
Meerut, Uttar Pradesh. ........Respondents
CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 1 of 9
Instituted on : 08.11.2019
Reserved on : 10.01.2023
Pronounced on : 12.01.2023
JUDGMENT
1. For the purpose of convenience, parties shall be referred to as per the rank and status before the Ld. Trial Court i.e. wife shall be referred to as aggrieved/complainant and husband shall be referred to as respondent no.1.
2. The grievance of the revisionist/aggrieved/complainant in the present revision is that the Ld. Trial Court despite a clear direction from the Ld. Principal District & Sessions Judge, South, Saket, New Delhi that only one opportunity shall be granted to the respondent no.1 to conduct cross examination of the aggrieved/complainant which was contained in the order dated 23.12.2019, granted further opportunity vide the impugned order to conclude the cross examination of aggrieved/complainant.
3. The facts relevant and necessary to be stated for the disposal of the present revision petition are as follows: A complaint U/s 12 of D V Act was filed by the aggrieved Sunaina Mittal on 03.07.2015 before the concerned Mahila Court against her husband (respondent no.1), and respondent no.2 to 4 who are her father in law, mother in law and brother in law, alleging domestic violence etc. The Ld. Trial Court vide order dated 18.08.2015 issued notice to all the four respondents and also sought DIR report from the protection officer.
CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 2 of 9After appearance, respondent no.1 and 2 filed their reply on 11.02.2016 and replication to same was also filed by the aggrieved to the said reply. It is recorded in the order sheet dated 22.09.2016 that a submission was made by the counsel for aggrieved that she was not pressing her application for grant of interim maintenance and requested that the case be proceeded further and accordingly the matter was fixed for complainant evidence and thereafter the evidence of complainant commenced. Vide order dated 09.10.2019, the Ld. MM03, Mahila Court was constrained to curtail the right of the respondents to cross examine CW1 after observing that despite several opportunities counsel for respondent failed to cross examine CW1/aggrieved. The said order is reproduced below for better appreciation :
09.10.2019 At 11.46 am Present: Ld Counsel for aggrieved alongwith aggrieved.
Respondent no.1 in person.
Passover sought buy respondent no.1 on the ground that his counsel will appear at 12.30 pm as he is presently busy in Hon'ble High Court of Delhi.
It is noted in the last order that no passover or adjournment shall be granted, yet in the interest of justice, one passover is granted.
Be put up at 12.30 pm. MM03 Mahila Court, South, Saket, Delhi At 12.30 pm Present: Same as above.
Respondent no.1 again sought passover on the ground that his counsel is still not available as he is still stuck in Hon'ble High Court of Delhi.
Despite directions that no passover or adjournment shall be granted today, one passover has already been granted to respondent no.1 but still he has no clue as to when his counsel will appear and he CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 3 of 9 is simply seeking second passover which cannot be granted now.
As despite several opportunities respondents have failed to cross examine the CW1/aggrieved, hence opportunity of all respondents to cross examine CW1 stands closed.
It is submitted by Ld. Counsel for aggrieved that aggrieved wants to lead further CE. Let evidence by way of affidavit of witnesses of aggrieved, if any be filed by aggrieved with advance copy to the opposite side. Steps be taken within a week.
Be put up for CE on 20.12.2019.
MM03 Mahila Court, South, Saket 09.10.19.
4. Aggrieved by the above order of the Ld. MM a revision was preferred against the same by the respondents before the Ld. Principal District & Sessions Judge South, Saket which was disposed vide order dated 23.12.2019. In the said order the Ld. Principal District & Sessions Judge, South, clearly observed that the adjournments as well as non appearance of counsel for the respondents were unjustified but considering the submissions of counsel for the respondents/appellants that appellant shall suffer irreparable loss and injury in case they were not allowed to crossexamine the aggrieved/complainant and taking into account the nature of the proceedings involved, one opportunity was granted to the respondents subject to the cost of Rs.25,000/ to cross examine the complainant/aggrieved and it was made clear that the appellants shall cross examine the respondent/aggrieved on the date fixed by the Ld. Trial Court and no passover/adjournment for any reason whatsoever shall be allowed. The operative portion of order dated 23.12.2019 is reproduced below:
At this stage, Ld. Proxy Counsel for the appellants submits that the appellants shall suffer irreparable loss and injury in case the appellants are not allowed to crossexamine the respondent herein. Taking into account the nature of the proceedings involved and for the decision on merits, one opportunity subject to cost of Rs.25,000/ (to be paid to the respondent herein), is given to the appellants to cross examine the respondent herein.CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 4 of 9
The appellants shall cross examine the respondent herein on the date so fixed by the Ld. Trial Court and no passover/adjournment for any reason whatsoever shall be allowed.
5. In compliance with the said order passed by the Ld. Principal District & Sessions Judge, (South), a sum of Rs.25,000/ was handed over by respondent no.1 to the aggrieved in the court on 08.01.2020 and the Ld. MM fixed the cross examination of aggrieved/ CW1 for 13.02.2020 at 11.00 am and also made it clear by the said order that no passover or adjournment shall be granted for cross examination of CW1 on the date fixed. It is recorded in the order sheet dated 13.02.2020 that CW1/aggrieved was cross examined in part on the date fixed and her further cross examination was deferred as it was already lunch time and CW1 was discharged and bound down for the next date of hearing. The order dated 13.02.2020 reads as under : 13.02.2020 Present: Sh. Rajesh Kumar, Ld Counsel for aggrieved alongwith aggrieved.
Ms. Mannat Singh, Ld. Counsel for all respondents with respondent Rishi Mahajan.
Respondent Seema, Ravi and Anil are absent.
Separate exemption applications moved on behalf of respondent Seema, Ravi and Anil. For the reasons stated, they are exempted from personal appearance for today only.
CW1/aggrieved is cross examined in part. Her further cross examination deferred as it is already lunch time. CW1 is discharged and is bound down for the next date of hearing.
Be put up for further cross examination of CW1/CE on 07.04.2020.
MM03, Mahila Court South District, Saket.
CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 5 of 96. Perusal of the subsequent ordersheets dated 30.09.2020, 12.02.2021, 08.07.2021, 14.09.2021 and 10.01.2022 would show that proceedings were carried through VC or matters were adjourned enblock due to corona pandemic and no effective proceedings took place on these dates. Thereafter, the order sheet dated 15.02.2022 would show that on the said date aggrieved appeared alongwith his counsel and Sh Sanjeet Kumar appeared as proxy counsel for the respondents through VC and sought adjournment on the ground that Sh Saurabh Soni, who is main counsel for the respondents has recently recovered from viral fever and is in self isolation. However, it was pointed out by aggrieved that Ms. Mannat Singh had cross examined the aggrieved on the previous date. During the hearing Ms. Mannat Singh appeared through VC and stated that she was resident of Gurgaon and while she was on her way, her car broke down and that is why she could not appear in the court for conducting cross examination of aggrieved. Ld Trial court took into account the fact that aggrieved was cross examined in part and thereafter the matter remained pending for cross examination because of restricted function of court due pandemic of covid19, in the interest of justice granted one last opportunity to the respondent for cross examination of the aggrieved. It is this order which has been challenged by the aggrieved. As per the counsel for the aggrieved the Ld. MM was not given any discretion by the Ld. Principal District & Sessions Judge, South, vide order dated 23.12.2019 to grant any further opportunity to cross examine the aggrieved and he has argued that the Ld. Appellate Court had specifically mentioned that the "respondent shall cross examine the appellant herein on the date so fixed by the Ld. Trial Court and no passover/adjournment for any reason whatsoever shall be allowed." He has further argued that even the ground sought for cross examination by the counsel for the aggrieved in the CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 6 of 9 impugned does not inspire any confidence and clearly reveals that it was only a dilatory tactics. He has argued that earlier cross examination was conducted by Ms. Mannat Singh and there was no reason for the proxy counsel to seek adjournment by stating that Sh Saurabh Soni is the main counsel and recently recovered from viral fever and he is himself in isolation and therefore unable to conduct the cross examination and it was only thereafter Ms. Mannat Singh appeared through VC and took a plea that her car broke down due to which she could not appear for conducting cross examination. On the other hand Ld. Counsel for the respondent has argued that the appearance of either of the counsel for respondent i.e. Sh Saurabh Soni and Ms. Mannat Singh was not deliberate and intentional but due to the reasons mentioned in the order sheet dated 15.02.2022 and they were prevented from appearing for the reasons which were beyond their control and under these circumstances the Ld. Trial Court was justified to adjourn the case.
7. I have heard Ld. Counsel for the appellant as well as respondents and perused the record.
8. The Ld. Appellate Court vide order dated 23.12.2019 had specifically granted last opportunity to the respondents to cross examine the complainant/aggrieved on the date fixed by the Ld. Trial Court and further made it clear that no passover/adjournment for any reason whatsoever shall be allowed and accordingly a date was fixed by the Ld. Trial Court for conducting the cross examination of complainant/aggrieved in compliance with the said order. Perusal of the record further shows that cross examination could not be concluded on the said date and thereafter the court switched to online mode due CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 7 of 9 to the corona pandemic which consequently delayed the remaining cross examination as well as the trial of the present case for a substantial period. After the corona subsided, vide the impugned order Ld. Trial court once again acceded to the request of the counsel for the respondent and adjourned the matter to further date. No doubt, despite the said order some discretion was still left with the Ld. Trial Court to consider the request of the respondents for adjournment but at the same time the complainant/aggrieved had also grounds to suspect that such request may not have been genuine. Perusal of the record of Trial Court would show that the present matter is pending for almost 78 years and the complainant/aggrieved has appeared several times for her crossexamination and same could not commence because of unavailability of counsel for the respondents. Thereafter, she entered the witness box on as many as three dates but her crossexamination could not be concluded. Therefore, even if the Ld. Trial Court thought it proper to accede to the request of the respondent for adjournment the same should not have been accepted without compensating the complainant/aggrieved adequately, particularly when the Ld. Appellate Court had already once granted last opportunity subject to cost of Rs.25,000/. The Ld. Trial Court was required to give a message that it was not business as usual for the respondents. Complainant had reason to be disappointed by the said adjournment without any burden on respondent. Considering all the facts and circumstances of the present case and also considering the fact that even after the impugned order some cross examination of complainant/CW1 has taken place one last opportunity is granted to the counsel for the respondents to conclude the crossexamination of complainant/CW1 subject to the cost of Rs.30,000/ to be paid to the complainant by respondent no.1, which shall be conducted on the date already fixed by the Ld. Trial Court i.e. 09.02.2023 and CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 8 of 9 both the parties shall appear before the Ld. Trial Court for the said purpose at 10.00 am and it is made clear that counsel for the respondent shall conclude the cross examination of complainant on the said date itself. However, it is made clear that if complainant is unable to appear on the said date and has sufficient cause for the same then the court may fix a subsequent date by taking into account convenience of both the parties and counsel for the respondents shall conclude the cross examination on the said subsequent date.
10. With these observations, instant appeal stands disposed of. Parties to appear before the Ld. Trial Court on the date already fixed for the purpose of cross examination of CW1/complainant i.e. 09.02.2023 at 10.00 am i.e. date already fixed in terms of the present order.
Present revision is disposed of with the aforesaid observations. Nothing mentioned in the present order shall be construed to be an expression on the case.
11. TCR be sent back to Ld. Trial Court alongwith copy of this judgment. Appeal file be consigned to Record Room after due compliance as per rules.
Pronounced in the open (CHANDER MOHAN)
Court on 12th January, 2023 Additional Sessions Judge07,
South, Saket Courts, New Delhi
CA No. 56/2022 Sunaina Mittal Vs. Rishi Mahajan Page 9 of 9