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2002 DIGILAW 222 (PNJ)

Rashidan v. Baaz Ali

2002-02-19

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. Ms. Rashidan filed application under Section 125 Cr.P.C. against her husband Baaz Ali on her behalf as well as on behalf of her minor daughters Nazia Parveen and others whereby they have claimed maintenance to the tune of Rs. 1700/- @ Rs. 500/- per month for Rashidan and @ Rs. 300/- per month for each of the children in the Court of Judicial Magistrate First Class, Malerkotla. 2. During the pendency of this application, she filed application under Section 311 Cr.P.C. for summoning, recalling and examining witnesses namely Bashir, Ultaf, Shabir and Ramzan. It was stated that on 1.3.93 they all were present, they could not be examined as the lawyers happened to be staying away from work that day. Case was adjourned to 27.4.93. On 27.4.93 her some witnesses were recorded by the Court. Her evidence was closed by the Court without affording her another opportunity to produce her witnesses. It was stated in that application that the examination of her previous husband was necessary with a view to showing that he had divorced her and after she had been divorced by him, she was free to remarry. It was also stated in that application that she wanted to prove her "nikahnama" with Baaz Ali. her "nikahnam" with Baaz Ali was signed by Baaz Ali and attested by two witnesses namely Gulzar Khan and Musraf Ali. It was stated in that application that the examination of Bashir, Ultaf, Shabir and Ramzan was necessary in the interest of justice. If these witnesses had been examined, the Court could have arrived at truthful conclusion and examination of these witnesses would have helped the Court in arriving at the truth. 3. Vide order dated 3.11.93, Judicial Magistrate First Class, Malerkotla dismissed this application. 4. Rashidan went in revision. Revision was dismissed by Sessions Judge, Sangrur vide order dated 12.11.93 Annexure P-3 saying that no revision lay against an interlocutory order in view of the provisions of Section 397(2) Cr.P.C. 5. Still not satisfied, Rashidan and her minor daughters have come up in this Crl. Misc. Petition to this Court under Section 482 Cr.P.C., whereby she has prayed for the quashing of order Annexure P-1 passed by Judicial Magistrate First Class, Malerkotla and order Annexure P-3 passed by learned Sessions Judge, Sangrur. 6. It is stated in the grounds of revision that on 1.3.93 her witnesses were present. Misc. Petition to this Court under Section 482 Cr.P.C., whereby she has prayed for the quashing of order Annexure P-1 passed by Judicial Magistrate First Class, Malerkotla and order Annexure P-3 passed by learned Sessions Judge, Sangrur. 6. It is stated in the grounds of revision that on 1.3.93 her witnesses were present. They could not be examined as lawyers were staying away from work that day. Witnesses were bound down for 15.4.93. Witnesses who had been bound down for 15.4.93 failed to appear in the Court, case was adjourned to 19.4.93. In the revision petition, it is stated that instead of taking note of the absence of witnesses on 19.4.93, and using coercive process against them, the Court closed her evidence. Instead of closing her evidence, the Court should have been around the witnesses, used coercive process against them and procured their presence before it by the exercise of its own might. 7. In this case, Rashidan could either file revision against the order dated 27.4.93 whereby her evidence was closed or she could make an application to the learned Magistrate under Section 311 Cr.P.C. for the summoning, recalling and examining of those witnesses. I do not think she has committed any illegality if she has adopted the latter course. If witnesses had been bound down, court should have procured their presence by the use of its own might. Even otherwise, Courts exist for doing justice to the parties. Rashidan was asking for maintenance for herself and for her minor daughters. Assuming that their mother was slack in the production of evidence, the minor daughters could not be punished for the slackness if any, on the part of their mother. What would have happened if the Court had granted one opportunity to Rashidan so that she could examine those witnesses instead of closing her evidence. Application was pending for the last about 3 years. Grant of one opportunity to her for producing those witnesses would not have been to the injury of Baaz Ali when the application was pending trial for the last about 3 years. 8. How can the order closing the applicants evidence be viewed as an "interlocutory order" particulary if the closure of her evidence is going to be decisive of her and her daughters claim to maintenance. 8. How can the order closing the applicants evidence be viewed as an "interlocutory order" particulary if the closure of her evidence is going to be decisive of her and her daughters claim to maintenance. Examining her previous husband to prove that he had divorced her and after he had divorced her, she entered nikah with Baaz Ali was a very material piece of evidence. If that evidence is not brought forth before the Court, there will be no marrige between Rashidan and the children born might be stamped with being illegitimate. 9. Looking to the interest of justice, this revision is allowed. Learned Magistrate is directed to allow Rashidan to summon those witnesses and she be allowed to summon other witnesses if any and examine them all.