Sikkim High Court
Rekha Jain vs Anil Jain And Anr on 1 April, 2022
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
1
W.P. (Crl.) No. 02 of 2021
Rekha Jain vs. Anil Jain & Anr.
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (Crl.) No. 02 of 2021
Smt. Rekha Jain,
W/o Shri. Anil Jain,
R/o D.P.H. Road, Near Janta Bhawan,
Gangtok, East Sikkim.
..... Petitioner
Versus
1. Shri Anil Jain,
S/o Babulal Jain,
R/o Sudarshan Telecom,
Serial no.208,
Daisy Building Neco Garden Comples,
Opp. Zee5 experience LOFT, Vimar Nagar,
Pune-411014.
2. Smt. Pista Devi Jain,
Wife of Babulal Jain,
R/o Sudarshan Telecom,
Serial no. 208,
Daisy Building Neco Garden Complex,
Opp. Zee5 experience LOFT
Vimar Nagar,
Pune-411014. .... Respondents
Application under Article 227 of the Constitution of India.
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Appearance:
Mr. Karma Tshering Tamang, Advocate for the Petitioner.
Ms. Gita Bista, Advocate for the respondents.
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Date of hearing : 11.03.2022 & 01.04.2022
Date of Judgment : 01.04.2022
J U D G M E N T (O R A L)
Bhaskar Raj Pradhan, J.
1. The present petition under Article 227 of the Constitution of India seeks to challenge an order dated 2 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
20.08.2021 passed by the learned Chief Judicial Magistrate rejecting the petitioner's application for leading evidence.
2. The petitioner had preferred a petition under section 12 of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) seeking reliefs under Section 17, 18, 19 (f), 20 and 21 thereof.
3. On 24.09.2019 the learned Chief Judicial Magistrate passed interim orders of protection in favour of the petitioner.
4. On 23.07.2021, during the proceedings, the petitioner moved an application to place certain electronic evidence (the application) through witness no.2 (Promod Jain) and to re-examine the petitioner on the limited aspect. The application also disclosed the type of evidence the petitioner was seeking to lead, its relevancy as well as the fact that she had recently traced the same. The relevant print outs of the electronic evidence was also placed for perusal before the learned Chief Judicial Magistrate.
5. On 20.08.2021 the learned Chief Judicial Magistrate disposed of the application for leading evidence on the ground that neither the Code of Criminal Procedure, 1973 (Cr.P.C.) nor the Domestic Violence Act allows a witness to file documents on behalf of the aggrieved party and therefore, even though these records may prove necessary 3 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
for proper adjudication of the case, in the absence of any provision that can allow a witness of a party to file documents, the application was rejected. The petitioner is aggrieved.
6. Heard Mr. Karma Tshering Tamang, learned counsel for the petitioner as well as Ms. Gita Bista, learned counsel for the respondents.
7. Mr. Tamang took this court through the provisions of the Domestic Violence Act as well as the Cr.P.C. and submitted that the procedure that ought to have been followed by the learned Chief Judicial Magistrate was the summary procedure under the Cr.P.C. which provides for taking evidence in the manner provided in those provisions. It is his submission therefore, the learned Chief Judicial Magistrate was not correct in holding that there was no provision to take evidence. Ms. Gita Bista on the other hand vehemently opposed the present petition under Article 227 of the Constitution of India. She submits that the petition is not maintainable and if the procedure to be followed in domestic violence cases is the criminal procedure, the petitioner ought to have approached this court under section 482 Cr.P.C. and not under Article 227 of the Constitution of India. She further submits that the application for seeking to lead evidence is grossly delayed in as much as it was filed 18 4 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
months after the petition under section 12 of the Domestic Violence Act had been filed. It is also her submission that the petitioner has not approached this court with clean hands and material facts have been suppressed. Further, the learned counsel submits that the application lacks the necessary pleadings.
8. Sub-section (1) of section 28 of the Domestic Violence Act provides that proceedings under section 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Cr.P.C. Sub-section (2) of section 28 provides that 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.
9. In Kunapareddy Alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari1 the Supreme Court examined whether a court dealing with the petition/complaint filed under the provisions of the Domestic Violence Act has power to allow amendment to the petition/complaint originally filed. The appellant therein had raised an objection that there was no power with the court to allow amendment to such a petition in the Cr.P.C. The Supreme Court examined the Domestic Violence Act and held that the very purpose of enacting it 1 (2016) 11 SCC 774 5 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
was to provide for a remedy which is an amalgamation of civil rights of the complainant i.e. the aggrieved person. Intension was to protect women against violence of any kind, especially that occurring within the family as the civil law does not address these phenomena in its entirety. The purpose of enacting the law was to provide a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. It is for this reason, that the scheme of the Domestic Violence Act provides that in the first instance, the order that would be passed by the Magistrate, on a complaint by the aggrieved person, would be of civil nature and if the said order is violated, it assumes the character of criminality.
10. The Supreme Court thus concluded that:
"16. We understood in this backdrop, it cannot be said that the court dealing with the application under the DV Act has no power and/or jurisdiction to allow the amendment of the said application. If the amendment becomes necessary in view of subsequent events (escalation of prices in the instant case) or to avoid multiplicity of litigation, court will have the power to permit such an amendment. It is said that procedure is the handmaid of justice and is to come to the aid of the justice rather than defeating it. It is nobody's case that Respondent 1 was not entitled to file another application claiming the reliefs which she sought to include in the pending application by way of amendment. If that be so, we see no reason, why the applicant be not allowed to incorporate this amendment in the pending application rather than filing a separate application. It is not that there is a complete ban/bar of amendment in the complaints in criminal courts which are governed by the Code, though undoubtedly such power to allow the 6 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
amendment has to be exercised sparingly and with caution under limited circumstances. ................"
11. Rule 6 of the Protection of Women from Domestic Violence Rules, 2006 (Domestic Violence Rules) provides for procedure for dealing with applications to the Magistrate under section 12. Rule 6(5) of the Domestic Violence Rules provides that the applications under section 12 shall be dealt with and the orders enforced in a same manner laid down under section 125 of Cr.P.C. Section 125 of Cr.P.C. deals with orders for maintenance of wives, children and parents. An order of maintenance as provided under section 125 of Cr.P.C. can be passed by a Magistrate of the I st class "upon proof of such neglect or refusal". Sub-section (2) of section 126 provides that all "evidence" to such proceedings under section 125 shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases. Under the proviso thereof if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte.
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Rekha Jain vs. Anil Jain & Anr.
12. The Supreme Court in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit2 held that validity of the marriage for the purpose of summary proceedings under section 125 of Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under section 494 of the Indian Penal Code, 1860 (IPC).
13. Section 262 Cr.P.C. provides that summary trials shall follow the summons case trials procedure. The summons cases procedure under Chapter XX of Cr.P.C. provides for taking evidence in the manner prescribed.
14. Evidence is vital in any adjudication. The courts should not normally shun evidence without examining its relevance. The fact that the legislature itself has provided in sub- section (2) of section 28 that nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 of the Domestic Violence Act makes it evident that the Magistrate has been given wide discretion to ensure procedural justice. While appreciating an application or a petition the courts are obligated to examine the substance of the application and the grievance of the applicant. A perusal of the application 2 (1999) 7 SCC 675 8 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
makes it evident that the petitioner was seeking to lead evidence before the learned Chief Judicial Magistrate took a decision on the merits of the petition filed by her. It was filed during the subsistence of the proceeding under section 12 of the Domestic Violence Act. It was not grossly delayed as suggested. It transpires that the learned Chief Judicial Magistrate was more focused on the technical flaw in the petition and could not find any provision allowing a witness to file documents on behalf of the aggrieved party. That was not what was sought for in the application. The petitioner was simply seeking to lead evidence which she thought would be relevant for her to succeed in the proceedings.
15. The procedure to be followed in dealing with a petition under section 12 of the Domestic Violence Act is the summons case trials summary procedure as provided in Cr.P.C. which permits the court to take evidence.
16. Article 227 of the Constitution of India provides the jurisdictional High Court with the power of superintendence over all courts subordinate to it. The courts of the learned Chief Judicial Magistrates within the territory of Sikkim are subject to the power of superintendence of this court. In Shalini Shyam Shetty vs. Rajendra Shankar Patil3 relied upon by the learned counsel for the respondents, the Supreme 3 (2010) 8 SCC 329 9 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
Court, on an analysis of its earlier judgments, laid down certain principles for the exercise of the High Court's jurisdiction under Article 227 of the Constitution of India. It held that the High Court can also interfere in exercise of its power of superintendence when there has been patent perversity in the orders of the tribunal and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In the present case there has been manifest failure of justice by not examining the application for leading evidence on the ground that there is no provision to do so even though those materials may prove necessary for proper adjudication.
17. In the circumstances, the impugned order dated 20.08.2021 is set aside. The application filed by the petitioner for leading evidence is restored to the file of the learned Chief Judicial Magistrate who shall examine the application and the materials placed afresh as per law and pass appropriate orders after giving an opportunity to the respondents to rebut the evidence sought to be produced and after hearing the parties. Needless to say the learned Chief Judicial Magistrate shall also consider the genuineness and authenticity of the evidence, including as to whether the contents thereof have been proved by the party relying 10 W.P. (Crl.) No. 02 of 2021 Rekha Jain vs. Anil Jain & Anr.
thereon. In view of the judgment the application for stay filed by the petitioner is rendered infructuous and accordingly disposed.
18. The petition is allowed. No order as to cost.
( Bhaskar Raj Pradhan )
Judge
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