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2002 DIGILAW 1474 (RAJ)

Ram Chandra v. Smt. Igyarsi Devi

2002-08-27

HARBANS LAL

body2002
JUDGMENT 1. - The instant petition under Section 482 Criminal Procedure Code has been preferred against the revisional order dated 16.3.2002 passed by the learned Sessions Judge, Bikaner in criminal revisional No.46/2002 whereby the revision has been dismissed and the order dated 29.1.2002 passed by the learned Judicial Magistrate 1st Class No.3, Bikaner in criminal misc case No. 109/2001 has been confirmed. 2. The relevant facts giving rise to this petition are that non-petitioner No. 1 Smt. 1 gyarsi Devi, the wife, filed a petition under Section 125 Cr. P.C. against petitioner Ram Chander, the husband, for grant of maintenance to her and to her minor daughter Miss Saroj. She appeared in the court on 29.1.2002 for recording of her statement but neither the petitioner nor his learned counsel appeared in the court despite calling the case for number of times and waiting for them upto 4.00 p.m. Learned Judicial Magistrate then proceeded to record her statement in ex-parte, at which stage the junior counsel filed an application for adjournment on the ground that senior counsel in the case was busy in other court arguing the matter, but the learned Magistrate declined the request for adjournment and completed her statement in ex-parte. The petitioner challenged the order before the learned court below by way of revision which was also disallowed vide impugned order. Hence, this petition. 3. It has been contended by the learned counsel for the petitioner that subsection (2) of Section 126 Criminal Procedure Code provides that the evidence in such proceedings under Section 125 Criminal Procedure Code shall be taken in the presence of a person against whom an order for demand of maintenance is proposed to be made or if his personal attendance is dispensed with, in the presence of his pleader. He has also submitted that on 29.1.2002 the learned senior counsel for the petitioner could not appear in the court for cross-examination of the witnesses as he was busy in arguing a case before another court and proper application for adjournment was also made on that ground which was unjustifiably refused. His contention is that the rules of procedure are hand maid of justice and a party ought not to be penalised for the default of his counsel. His contention is that the rules of procedure are hand maid of justice and a party ought not to be penalised for the default of his counsel. He has submitted that one last opportunity may be given to the petitioner to cross examine the witness Smt. 1 gyarsi Devi on payment of expenses for her appearance and cost. He has submitted that the petitioner has no intention to delay the matter in any way and the date may be fixed for the purpose by this Court itself for the cross examination of the aforesaid witness. 4. Learned counsel for the non-petitioner has vehemently contested this petition. He has submitted that absence of a counsel on account of his being busy in some other court is no valid ground for postponing the examination of the witness. He has also pointed out that petitioner himself has mentioned in the petition that he is handicapped and he is extremely old and confined to bed as a patient, so the statement of Smt. 1 gyarsi Devi could not have been recorded in his presence as contended by the learned counsel for the petitioner and as provided under sub-section (2) of Section 126 Criminal Procedure Code He has also submitted that the petitioner and his learned counsel have wilfully avoided to appear for which the non-petitioners cannot be blamed and it cannot be said that the learned courts below have committed and illegality or impropriety in passing the impugned order. 5. I have given by anxious and thoughtful consideration to the rival submissions made at the bar and have also perused the orders passed by the courts below. 6. It may be stated at the outset that the proceedings under Section 125 Criminal Procedure Code are quasi criminal proceedings and sub-section (2) of Section 126 Criminal Procedure Code imposes a mandatory duty upon the court to record the evidence in the presence of the husband. The said provision has been interpreted in Nand Kumar v. Smt. Gayatri reported in 2000(1) R.C.D. 115 (Raj.) wherein it has been observed that "if the expression "shall" used under Sub-section (2) of Section 126 Cr. The said provision has been interpreted in Nand Kumar v. Smt. Gayatri reported in 2000(1) R.C.D. 115 (Raj.) wherein it has been observed that "if the expression "shall" used under Sub-section (2) of Section 126 Cr. P.C. is read with reference to Sub-section (3) of Section 125 Criminal Procedure Code it will lead towards an irresistible conclusion that the legislature has insisted to record the evidence of wife in presence of her husband in a proceeding under Section 125 so that the husband may be provided with an indirect opportunity to patch up the difference with his wife and to effect a change of heart and restore a life of conjugal happiness by offering to maintain his wife." 7. This apart, it is well settled principle of law that the rules of procedure are hand maid of justice. In the instant case, learned senior counsel for the petitioner could not appear in the court on 29.1.2002 as he was-busy in arguing a case before another court and the junior counsel was not in a position to cross examine the witness, which ground has not been found to be false and cooked up by the learned court below only for the purpose of getting the matter adjourned and, therefore, the learned courts below could have taken a liberal view in the interest of justice and should have afforded an opportunity to the petitioner to cross-examine the witness on the next date on the petitioner paying the expenses of coming of the witness to the court and appropriate costs to compensate for the inconvenience caused to the witness. It is no body's case that witness had appeared earlier also and the adjournment was sought by and on behalf of petitioner. 8. Thus, in view of the relevant provisions and facts of this case, I deem it reasonable and proper for securing the ends of justice to provide one last opportunity to the petitioner to cross examine Smt. 1 gyarsi Devi on payment of her expenses and costs. 9. 8. Thus, in view of the relevant provisions and facts of this case, I deem it reasonable and proper for securing the ends of justice to provide one last opportunity to the petitioner to cross examine Smt. 1 gyarsi Devi on payment of her expenses and costs. 9. In the result, this petition is hereby allowed and the order dated 16.3.2002 passed by the leaned Sessions Judge, Bikaner and order dated 29.1.2002 passed by the learned Judicial Magistrate and hereby quashed and it is directed that the learned trial court shall provide the petitioner one last opportunity to cross examine Smt. 1 gyarsi Devi on depositing cost of her appearance before the court alongwith a cost of Rs. 1000/-. The parties are directed to appear before the trial court on 16.9.2002.Petition allowed. *******