Delhi District Court
P.C. Gupta vs Ruchika Gupta on 18 May, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL, ADDITIONAL
SESSIONS JUDGE-05, SOUTH EAST DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 80 of 2020
CNR No.DLSE01-001633-2020
IN THE MATTER OF:
P.C. Gupta
S/o late Sh Kishori Lal,
R/o House No.538, Sector -37,
Faridabad, Haryana .......Appellant
Versus
1. Ruchika Gupta,
W/o Nitin Gupta,
R/o E-163, GK-11, New Delhi
2. Nitin Gupta,
S/o Sh P C Gupta,
R/o House No. 105/7, Jagriti Vihar,
Meerut, Uttar Pradesh
........Respondents
Instituted on : 02.03.2020
Reserved on : not reserved
Pronounced on : 18.05.2022
CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 1 of 6
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.05.18
14:54:49 +0530
JUDGMENT
1. Vide instant appeal, appellant takes exception to order dated 25.01.2020, whereby his application moved under section 311 CrPC stood dismissed by the learned Metropolitan Magistrate-01, Mahila Court, South-East District, Saket Courts, New Delhi, in case bearing CT No.616723/2016 titled as 'Ruchika Gupta Vs Nitin Gupta & Ors', filed under provisions of Domestic Violence Act.
2. Brief facts may be taken note of: A complaint under provisions of Protection of Women from Domestic Violence Act, 2005 seeking various reliefs came to be filed by complainant/ respondent Ruchika Gutpa against her husband and his father i.e. appellant herein (respondent no.2 before Ld. Trial Court) with the allegations that she was subject to cruelty and domestic violence by them.
3. Record reveals that during course of trial, an application u/s 311 CrPC came to be moved on behalf of appellant seeking to recall respondent Ruchika Gupta for her further cross examination in view of the fact that she was allowed to examine certain witnesses i.e. witnesses from Serial No. A to K of her list pursuant to order dated 17.03.2017, whereby her application u/s 91 CrPC was allowed by Ld. Trial Court.
4. Vide impugned order, Ld. Trial Court after hearing arguments and considering the facts and circumstances of the case, CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 2 of 6 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.05.18 14:54:59 +0530 dismissed the said application of appellant. For the sake of convenience, the impugned order is being reproduced as under:-
"At this stage, R2 has moved an application u/s 311 CrPC stating that he intends to recall CW Ruchika Gupta for her further cross examination on the ground that while the matter was listed for RW, she was allowed to examine witnesses mentioned in her list from serial no. A to K vide order dated 10.08.2016 and he intends to put questions to this witness during her cross examination about examination of witnesses at serial no. A to K. Perusal of the record reveals that vide order dated 17.03.2017, the application u/s 91 CrPC preferred by applicant/complainant was allowed, pursuant to which witnesses at serial no. A to K were summoned. Further, perusal of record reveals that CW-1 Ruchika Gupta was examined on 21.08.2014 and on that day respondent no.2 cross examined her in person at length. Further, when the witnesses at serial no. A to K were summoned, proper opportunity was given to respondents for cross examination of these witnesses and these witnesses have been cross examined on behalf of respondents. As such, I do not find any merits in this application and the same is dismissed accordingly and disposed of. "
5. The appellant is aggrieved with the said order of the Ld. Trial Court and has assailed the same on various grounds which can be summarized as under:-
a) that the impugned order is against the settled principles of law;
b) that the impugned order is bad in the eyes of law;
c) that Ld Trial Court failed to consider the fact that new witnesses were called at the instance of complainant u/s 91 Cr.PC and that too at the stage of respondent evidence;
d) that Ld Trial Court erred in law by not affording an opportunity to appellant to cross examine the complainant;
CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 3 of 6 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.18 14:55:08 +0530
6. Ld. Legal Aid Counsel for the appellant argued on the line of grounds as taken in the instant petition. It is forcefully argued that the impugned order is not sustainable in the eyes of law as the same was passed without following the basic principles of natural justice and the further cross examination of complainant/ respondent Ruchika Gupta is essential in the facts and circumstances of the present case. In support of his submissions, Ld. LAC has placed reliance upon the judgment of Hon'ble Apex Court in Mannan SK & Ors Vs State Of West Bengal & Anr, Crl Appeal No.1307 of 2014, decided on 03.07.2014.
7. Per contra, it is argued by respondent No.1 that there is no infirmity in the impugned order and Ld. Trial Court, for the right reasons, dismissed the application of appellant as same was nothing but a delaying tactic on his part. She further argued that the impugned order was passed after considering all the facts and circumstances of the present case. It is submitted that the present appeal is misconceived and therefore same is liable to be dismissed.
8. I have heard arguments and perused the record.
9. It is well settled law that while considering the legality, propriety or correctness of a finding or a conclusion, normally the appellate court does not well at length upon the facts and evidence of the case. Appellate Court considers the material only to satisfy itself CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 4 of 6 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.18 14:55:16 +0530 about the legality and propriety of the findings and refrains from substituting its own conclusion on an elaborate consideration of evidence. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the Appellant Court is not justified in setting aside the order, merely because another view is possible.
10. Therefore, in view of the settled position of law, this court in its appellant jurisdiction, is not expected to substitute its own view with that of Ld. Trial Court until and unless the order passed by Ld. Trial Court suffers from patent infirmity/illegality. In the instant case, as evident from record, Ld. Trial Court while elaborating the facts and submissions, passed a well reasoned order, thereby dismissing the application of appellant and therefore, this court cannot and rather ought not substitute its own view with that of Ld. Trial Court (while exercising its appellate jurisdiction) and thereby arriving at a different conclusion.
11. Suffice it would be to say that as rightly observed by Ld. Trial Court, all the witnesses which were summoned pursuant to order dated 17.03.2017 were duly cross examined on behalf of respondents and therefore in my considered view, no good ground existed for recalling respondent Ruchika Gupta for her further cross examination that too when she was already cross examined at length on behalf of CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 5 of 6 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.18 14:55:23 +0530 respondents on previous occasions. In my considered view, Ld. Trial Court has rightly dismissed the application of appellant in the facts and circumstances of the present case and the impugned order therefore does not call for any interference.
12. With these observations, instant appeal stands dismissed.
13. TCR be sent back to the Ld. Trial court along with copy of judgment.
14. Appeal file be consigned to Record Room after due compliance. Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.05.18 Announced in the open 14:55:29 +0530 Court on 18th May, 2022 (ANUJ AGRAWAL) Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 80/2020 P C Gupta vs. Ruchika Gupta & Anr Page No. 6 of 6