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2005 DIGILAW 453 (RAJ)

Neelam v. State of Rajasthan

2005-02-11

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397 read with Section 401, CrPC, the petitioner has challenged the order dated 26.05.2003 passed by the Additional Sessions Judge No. 2, Bikaner (for short, "the revisional Court" hereinafter), whereby the revisional Court allowed the revision petition filed by respondent No. 2 Rajesh Kumar and set-aside the order dated 18.02.2003 passed by the Additional Chief Judicial Magistrate No. 1, Bikaner (for short, "the trial Court" hereinafter) in Criminal Case No. 161/1999, whereby the trial Court allowed the application filed by the petitioner under Section 125, CrPC and awarded maintenance @ Rs. 1200/-per month in favour of the petitioner and against the respondent No. 2. Apart from the amount of Rs. 1200/-per month as maintenance, the trial Court also directed the respondent No. 2 to pay a sum of Rs. 150/-per month towards medical expenses and Rs. 100/-per month for other expenses. The interim maintenance awarded to the petitioner was made subject to adjustment against the maintenance finally awarded by the trial Court. Aggrieved by the order dated 18.02.2003 passed by the trial Court, the respondent No. 2 filed criminal revision petition No. 8/2003 before the revisional Court. The order of the trial Court was mainly challenged on the ground of non-compliance of the provision of Section 126 (2) CrPC allegingtherein that the examination-in-chief of AW. 1 Smt. Neelam and AW. 2 Narain Das were recorded in the absence of respondent No. 2 and his Counsel. On this ground, the revisional Court set-aside the order of the trial Court and remanded the matter to the trial Court to decide it afresh in the light of the provision of Section 126(2), CrPC. 2. I have heard learned Counsel for the petitioner and also gone through the record of the trial Court. This case has a chequerred history. The petitioner filed an application under Section 125, CrPC before the trial Court on 24.06.1999. Notice of the application was served on respondent No. 2, who filed the reply on 12.1999. Respondent No. 2 was represented through his Counsel. On 09.08.2001, the petitioner along with her Counsel and witness Narain Das were present in the Court. Respondent No. 2 was not present in the Court and his Counsel, though present in the Court premises, did not appear in the case. Respondent No. 2 was represented through his Counsel. On 09.08.2001, the petitioner along with her Counsel and witness Narain Das were present in the Court. Respondent No. 2 was not present in the Court and his Counsel, though present in the Court premises, did not appear in the case. On several times, call was made to the respondent No. 2 and his Counsel but neither the respondent No. 2 nor his Counsel put in appearance before the Court. Counsel for the petitioner approached to the Counsel representing respondent No. 2, viz. Mr. Damodar Sharma, Advocate, in the Court premises and informed him that the petitioner and her witness are present and their statement are to be recorded so he may appear on behalf of respondent No. 2 and cross-examine the witnesses. Despite this, Counsel for respondent No. 2 did not appear. Ex parte proceeding was drawn against respondent No. 2 and thereafter the statement of AW. 1 Smt. Neelam and her witness AW.2 Narain Das were recorded and the petitioner closed her evidence. By the other dated 14.08.2001, the trial Court allowed the application filed by the petitioner and awarded maintenance to her. That order came to be challenged by the respondent No. 2 by way of filing criminal revision petition before the Additional Sessions Judge, Bikaner being Criminal Revision Petition No. 204/2001. By the order dated 27.07.2002, the revision petition filed against the order of the trial Court dated 14.08.2001 was allowed, the order of the trial Court was set-aside and the matter was remanded to the trial Court with a direction to decide it afresh after affording equal opportunity of hearing to both the parties and the parties were directed to appear before the trial Court on 12.08.2002. It was further directed that the revisionist, i.e. respondent No. 2 herein, shall keep himself and his witnesses present peremptorily and was also directed to cross-examine the witnesses produced by the petitioner. It was also made clear that for the purpose of cross-examination, no further opportunity would be given. The respondent No. 2 was directed to produce his entire evidence on the date fixed and the matter would be adjourned only in the exceptional circumstances. On 12.08.2001, the petitioner and her witness Narain Das were present before the trial Court, as directed by the learned Sessions Judge while deciding the revision petition. AW. The respondent No. 2 was directed to produce his entire evidence on the date fixed and the matter would be adjourned only in the exceptional circumstances. On 12.08.2001, the petitioner and her witness Narain Das were present before the trial Court, as directed by the learned Sessions Judge while deciding the revision petition. AW. 1 Smt. Neelam, the petitioner, was cross-examined by the Counsel appearing for respondent No. 2 on 12.08.2002. AW. 2 Narain Das was also present on that day; however, his cross-examination could not be undertaken due to paucity of time. From the order sheet of the trial Court, it appears that the cross-examination of AW. 1 Smt. Neelam was completed at about 4:30 PM and the matter was adjourned to 05.09.2002. On 05.09.2002, AW. 2 Narain Das appeared for cross-examination and he was cross-examined by the Counsel appearing for respondent No. 2. Thus, the order of the revisional Court dated 27.07.2002 had been fully complied with by the trial Court. 3. While remanding the matter, the revisional Court, vide order dated 27.07.2002, made it clear that the witnesses produced by the complainant would appear only for cross-examination and, therefore, there was no necessity for them to make a fresh statement in examination-in-chief in the presence of respondent No. 2. That order was passed on the revision petition filed by the respondent No. 2 at his request and, therefore, it does no lay in the mouth of the respondent No. 2 to thereafter turn out and say that the examination-in-chief of AW . 1 Smt. Neelam and AW . 2 Narain Das were not recorded in his or his Counsels presence. This aspect of the matter has been totally ignored by the revisional Court while setting aside the order passed by the trial Court. 4. In this view of the matter, the order impugned dated 26.05.2003 passed by the revisional Court is contrary to the earlier order passed by it on the revision petition filed by the respondent No. 2 before the learned Sessions Judge, Bikaner and, therefore, the impugned order cannot be sustained and is liable to be set-aside. 5. However, by a perusal of the record of the trial Court and the initial order, by which maintenance was granted in favour of the petitioner, it is clear that the trial Court, apart from awarding maintenance @ Rs. 1,200/- per month, also awarded a sum of Rs. 5. However, by a perusal of the record of the trial Court and the initial order, by which maintenance was granted in favour of the petitioner, it is clear that the trial Court, apart from awarding maintenance @ Rs. 1,200/- per month, also awarded a sum of Rs. 150/- per month as medical expenses and Rs. 100/-per month as miscellaneous expenses. The order of the trial Court awarding medical expenses and miscellaneous expenses appears to be erroneous and, therefore, while exercising revisional jurisdiction, the second part of the order passed by the trial Court needs to be modified. Since, the trial Court has determined the maintenance to the tune of Rs. 1,200/-per month, there was no further scope to award any additional allowance, may be for medical expenses or miscellaneous expenses. The amount of maintenance must include all expenses which are required for a person to be maintained in a dignified manner. 6. Consequently, the revision petition is allowed. The impugned order dated 26.05.2003 passed by the Additional Sessions Judge No. 2, Bikaner in criminal revision petition No. 8/2003 is hereby set-aside. The order of the trial Court dated 18.02.2003, to the extent of awarding maintenance to the petitioner @ Rs. 1200/-per month from the date of application, is restored and it is made clear that the petitioner shall be entitled for the maintenance @ Rs. 1,200/-per month from the date of application from the respondent No. 2. However, the order of the trial Court awarding the additional amounts, i.e. Rs. 150/-per month for medical expenses and Rs. 100/-per month for miscellaneous expenses, stands set-aside.