Punjab-Haryana High Court
Gurtej Singh vs Balwinder Kaur on 1 May, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRM-M-1798-2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-1798-2012 (O&M)
Date of Decision: May 1, 2013
Gurtej Singh
...Petitioner
Versus
Balwinder Kaur
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Ravi K. Matoo, Advocate,
for the petitioner.
Mr. Hari Om Verma, Advocate,
for the respondent.
NARESH KUMAR SANGHI, J.
1. The present petition under Section 482, Cr.P.C. has been filed by the petitioner-husband, Gurtej Singh, challenging the judgment dated 12.09.2011 (Annexure P-8), passed by the learned Additional Sessions Judge, S.A.S.Nagar, Mohali, vide which the criminal revision petition filed by the respondent-wife, Balwinder Kaur, against the judgment dated 24.04.2010, passed by learned Sub-Divisional Judicial Magistrate, Kharar, was set aside and the matter was remitted to the learned Trial Court to record the evidence afresh in accordance with law and decide the matter on the basis of the material which came on record.
2. The facts of the present case in a nutshell are that the respondent-wife moved an application under Section 125 of the Code of Criminal Procedure, 1973, (for brievity, 'the Code') before the learned Judicial Magistrate Ist Class on the allegations that CRM-M-1798-2012 (O&M) 2 her marriage with the petitioner-husband was solemnized on 20.11.2006. Out of the said wed lock a female child was born on 27.09.2007. Father of the respondent-wife had given sufficient dowry at the time of marriage. Even, expenditure on the delivery of the child by the respondent-wife was incurred by her (wife) father. She averred in her petition regarding her maltreatment by her husband and his family members. It was also alleged that she was turned out of her matrimonial home in wearing apparels only. She had no source of income to maintain herself while the petitioner-husband was working in a Milk Plant at Patiala and was earning `12,000/- per month. She claimed `5000/- per month as maintenance from the petitioner-husband.
3. Notice of the petition under Section 125 of the Code, filed by the respondent-wife was issued to the petitioner- husband. He appeared and filed reply wherein he denied the allegations regarding maltreatment of his wife. Rather, he alleged that his wife was short tempered a quarrelsome lady. She left her matrimonial house without any reason and rhyme leaving behind the minor child. He further alleged that the respondent- wife was running a beauty parlour and earning `20,000/- per month. He further pleaded that he had been working in the Milk Plant with a Contractor on monthly wages of `2000/- only. He prayed for dismissal of the petition.
4. In evidence, respondent-wife Balwinder Kaur appeared as PW-1 and tendered her affidavit as Ex. PW1/A wherein she stated in accordance with her case, reiterating the contents of the petition. PW-2 Charan Kaur, her mother, also deposed on CRM-M-1798-2012 (O&M) 3 similar lines. Both were cross examined. No further evidence was led by the respondent-wife.
5. In his evidence, petitioner-husband Gurtej Singh appeared as DW-1 and tendered his affidavit (Ex. DW1/A) wherein he stated in accordance with the written reply. RW-2 Jasbir Singh in his affidavit deposed that he is residing near the house of petitioner whose marriage took place with respondent- wife and a female child Mehakpreet Kaur was born; the behaviour of the respondent-wife was cruel and she left the house without any reason and is now doing the business of beauty parlour, manufacturing of toys and a private job. Petitioner-husband is earning only `2,000/- per month. RW-3 Lachhman Singh, father of the petitioner-husband, in his affidavit supported the version of petitioner-husband and also proved fee slip as Ex.A1, admission form as Ex.A2 along with photographs Ex.RW4/A, Ex.RW4/B and visiting card Ex.R4/C. These witnesses were cross examined. Petitioner-husband tendered copy of judgment passed by learned District Judge, Fategarh Sahib, as Ex.PX in additional evidence. No further evidence was led by the petitioner-husband.
6. After hearing the learned counsel for the parties, the learned Sub Divisional Judicial Magistrate, Kharar, vide his order dated 24.10.2010 (Annexure P-6) dismissed the petition primarily on the ground that the respondent-wife was not a deserted lady but she herself deserted her husband and infant child and she was not able to satisfy the condition for claiming maintenance that she was unable to maintain herself.
7. The respondent-wife challenged the judgment passed CRM-M-1798-2012 (O&M) 4 by the learned Sub Divisional Judicial Magistrate, Kharar before the learned Additional Sessions Judge, Mohali, by way of a revision which was decided vide order dated 12.09.2011 (Annexure P-8). The judgment of the learned trial court was set aside and the matter was remitted to the trial court with the direction to record the evidence of the parties in accordance with law and to decide the matter afresh.
8. The present petition under Section 482 of the Code has been filed by the petitioner-husband challenging the judgment of the learned Additional Sessions Judge, Mohali on the premise that the learned trial court had rightly considered the affidavits filed by the parties in their evidence and correctly dismissed the petition filed by the wife while the learned Additional Sessions Judge, Mohali, had wrongly set aside the well reasoned judgment passed by the learned Sub Divisional Judicial Magistrate, Kharar.
9. Learned counsel for the respondent-wife submitted that permitting the parties to lead evidence by way of affidavits in respect of the proceedings initiated under Section 125 of the Code was not permissible. The procedure adopted by the learned Trial Court was against the norms laid down in Section 126 of the Code.
10. The question which requires consideration of this Court is as to whether Section 126 of the Code permits evidence by way of an affidavit or not?
11. To answer the above said issue it is necessary to refer to Section 126 of the Code, which reads as under:- CRM-M-1798-2012 (O&M) 5
"126.Procedure.- (1) Proceedings under section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed 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:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with aplications under section 125 shal have power to make such order as to costs as may be just."
12. A plain reading in sub-section (2) of Section 126 makes it CRM-M-1798-2012 (O&M) 6 clear that all evidence in respect of Section 125 of the Code proceedings shall have to be recorded in the manner prescribed for summons cases. The procedure prescribed for recording of evidence in summons case is narrated in Section 274 of the Code, which reads as under:-
"274. Record in summons-cases and inquiries.- (1) In all summons-cases tried before a Magistrate, in all inquiries under sections 145 to 148 (both inclusive), and in all proceedings under section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of his evidence in the language of the Court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall, after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record."
13. It is, therefore, clear that in all summons cases tried by a Magistrate, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court. It is, therefore, clear from the above procedure prescribed for summons cases that the evidence will have to be recorded before the Magistrate and the learned Magistrate shall record the substance of the evidence as examination of each witness proceeds.
CRM-M-1798-2012 (O&M) 7
14. Thus, it is clear from the above procedure in respect of recording of the evidence that the Code does not prescribe that the evidence, except of formal nature, be recorded by way of affidavit. On course, Section 296 of the Code is an exception to the general rule, which reads as under:-
"296. Evidence of formal character on affidavit.- (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit."
15. Perusal of the above provision clearly demonstrate that the evidence of any person of a formal character may be given by affidavit and the same be read in evidence in any inquiry, trial or other proceeding under the Code, but subject to all just exceptions.
16. A similar question came up for consideration before Hon'ble Mysore High Court in the matter of Naranappa v. Puttamma, AIR 1963 Mysore 174. It is apposite to mention here that the provisions mentioned in the quoted judgment had arisen out of the previous Code of Criminal Procedure, but the case was for the grant of maintenance only. After scanning the various provisions, it was held that there was no provision for deciding a case for grant of maintenance on the basis of affidavits because CRM-M-1798-2012 (O&M) 8 there was no specific provision in the Code of Criminal Procedure in that regard. It was also observed that the defect of taking evidence by way of affidavits was not curable.
17. In the matter of Moti Lan and others v. State of U.P., 2004 CriLJ 950, a Division Bench of Hon'ble Allahabad High Court held as under:-
"45. Therefore, the mode of examination and cross-examination of the witnesses is contained in Criminal Procedure Code and Evidence Act. The above procedure does not prescribe taking evidence of witnesses of fact on affidavit that too in absence of parties. However, Section 296 of the Criminal Procedure Code says that the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. The above section further says that the Court may, if it thinks fit, and shall, on the application of the prosecution or of the accused, summon and examine any such person as to the facts contained in his affidavit. Therefore, evidence of a witness may be given on affidavit provided the evidence of a particular witness is formal in character. The witnesses who filed affidavit, their evidence admittedly was not of a formal character, but they are the witness of the occurrence and therefore, their evidence could not be legally taken on affidavit.
46. The learned counsel for the appellants contended that assuming that evidence of ocular witness could not be taken on affidavit, those witnesses were cross examined by the prosecution and the portion of cross-examination be read into CRM-M-1798-2012 (O&M) 9 evidence. If the evidence given by those witnesses on affidavit was itself not admissible, their cross examination though in the Court can also not be admissible. However, in their cross examination the above witnesses have simply confirmed the facts deposed in the affidavit which is not admissible. Therefore, the evidence given on affidavit by above witnesses (P.Ws. 1 to 4) cannot be taken into consideration and it can simply be inferred that those witnesses had not come before the Court have not supported the prosecution case, but on this ground the prosecution story cannot be thrown away as the Court is under duty to decide the merits of the case, on the basis of evidence or record. Moreover, Smt. Manju Singh (P.W. 5) has stated that above witnesses were won over by the appellants. It is not uncommon that witnesses are overpowered and if a witness who has been won over is not examined, it will not falsify the prosecution case. We have already mentioned that the evidence of ocular witnesses Smt. Manju Singh (P.W. 5) and Smt. Kaushalya (P.W. 6) is worth reliable and therefore, the non examination of other injured witnesses or non support of prosecution story by them is not material."
18. In the matter of Nirmaljit Singh Hoon v. State of W.B. and others, AIR 1972 SC 2639, in para No. 44 of the judgment, Hon'ble the Supreme Court held as under:-
"44. .........In order to show the etrustment of shares to Jaffray, Mr. Chagla has relied upon the affidavit of Varma. Varma, as stated earlier, did not appear in the course of the judicial enquiry which was held by the Presidency Magistrate. He, however, chose to send his affidavit from United Kingdom. The courts CRM-M-1798-2012 (O&M) 10 below declined to take that affidavit into consideration and, in my opinion, they were justified in doing so. According to Section 510A of the Code of Criminal Procedure, the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. This section was inserted by the Code of Criminal Procedure Amendment Act (26 of 1955) and its object is to accelerate the disposal of cases. Provision is accordingly made for the filing of an affidavit of a witness whose evidence is of a formal character. If, however, the evidence of a person is not of a formal character, but goes to the very root of the matter as in the present case, no resort can be made to the provisions of the above section. ........"
19. From the above discussion, this Court is of the considered opinion that the evidence of a formal character only can be received by way of an affidavit during course of inquiry, trial and other proceeding, subject matter of the Code of Criminal Procedure. The statements of the parties to a proceedings under Section 125, Cr.P.C. cannot be termed of a formal character. Therefore, the learned Revisional Court had rightly directed the Trial Court to decide the petition afresh after taking the evidence of the parties in accordance with the procedure laid down in Section 126 read with Section 274, Cr.P.C. Therefore, there is no merit in the present petition and the same is hereby dismissed.
(NARESH KUMAR SANGHI)
May 1, 2013 JUDGE
Anoop/Pkapoor