Karnataka High Court
Smt. Pushpavathi vs Shivayogayya S/O Siddaramayya ... on 2 April, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 2ND DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL PETITION No.11451/2011
BETWEEN:
1. SMT.PUSHPAVATHI
W/O SHIVAYOGAYYA YATTINAMATH
Age:35 YEARS, OCC:NIL OF MAGODI
R/O:HIREMATH ONI, HAVERI TALUK
DIST:HAVERI
2. KUMARSWAMI S/O SHIVAYOGAYYA YATTINAMATH
Age:10 YEARS,
STUDENT OF MAGADI, SINCE MINOR
THROUGH HIS NATURAL MOTHER
PETITIONER NO.1, THROUGH POWER OF
ATTORNEY,
SRI.SHANTHAMALLAYYA
S/O PATRADAYYA HIREMATH,
AGE:65,OCC:RETIRED TEACHER,
HIREMATH ONI, M.G.ROAD,
TQ & DIST:HAVERI. ... PETITIONERS
(BY SRI.S.V.PRALAYAKALAMATH, ADV.)
AND:
SHIVAYOGAYYA S/O SIDDARAMAYYA YATTINAMATH
AGE: 40 YEARS
OCC:AGRICULTURE, R/O MAGADI,
2
TQ:SHIRAHATTI, DIST:GADAG. DIST:GADAG
... RESPONDENT
(BY SRI.N.P.VIVEKMEHTA, ADV.)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO CALL FOR RECORDS IN CRL.MISC.NO.05/2005 FROM
THE ADDL. JUNIOR CIVIL JUDGE (JR.DN.) & JMFC COURT, AND
QUASH ORDER DATED 18.04.2011 OR TO SET ASIDE.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Though the matter is listed for admission, with the consent of both the parties, the same is taken up for final disposal.
2. The prayer made by the petitioners is for quashing the order dated 18.4.2011 passed in Crl.Misc.No.5/2005 on the file of the Addl. Civil Judge (Jr.Dn.) and JMFC, Haveri. Petitioner No.1 is the wife and petitioner No.2 is the child of the respondent. The petition was filed under Section 125 of the Cr.P.C. The learned Magistrate has passed the order directing the petitioners to lead evidence as per Sections 274 and 126 of the Cr.P.C. It is the case of the petitioners that petitioner No.1/wife of the 3 respondent is deaf and dumb and cannot adduce evidence. Accordingly, a General Power of Attorney is appointed on her behalf seeking maintenance from the respondent for the purpose of Sections 274 and 126 of Cr.P.C. Under these circumstances, it is their case that the learned Magistrate has committed an error in directing as such.
3. Learned counsel for the respondent submits that recording of evidence under Sections 274 and 126 of the Cr.P.C. is mandatory and since petitioner No.1 is physically disabled, she could have invoked the provisions of Section 119 of the Indian Evidence Act and she could have adopted any mode to express her case.
4. I have examined the submissions of the learned counsel appearing for the parties.
5. It is seen that the order passed by the learned trial Judge is sound and proper. But he could have directed 4 the petitioners to invoke provisions under Section 119 of the Indian Evidence Act and the petitioners also could have made such application under the said provision. Under these circumstances, to meet the ends of justice, it is just and proper to dispose of this matter by permitting the petitioners to make application under Section 119 of the Indian Evidence Act. In case, such application is not made, the learned Civil Judge is duty bound to permit the petitioners to adduce evidence under Section 119 of the Indian Evidence Act for the purpose of Sections 274 and 126 of the Cr.P.C.
With the above observations, this petition stands disposed of.
Since it is submitted that the matter is pending since 2005, it is expected that the court shall take up the matter and dispose of the same at an earlier date.
SD/-
JUDGE Jm/-