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2011 DIGILAW 1678 (RAJ)

Pawan Kumar v. State of Rajasthan

2011-08-10

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—This criminal miscellaneous petition has been filed under Section 482, Cr.P.C. by the petitioner against order dated 20.7.2011 passed by the Chief Judicial Magistrate, Churu, whereby, application filed by the petitioner husband under Section 126(2), Cr.P.C., was rejected. 2. Learned counsel for the petitioner submits that an application under Section 125, Cr.P.C. was filed by non-petitioner Smt. Sarla on her behalf and on behalf of two minor children Mamtesh and Bhawani Shankar. The application filed for maintenance under Section 125, Cr.P.C. was rejected vide order dated 14.9.2006. Thereafter, upon challenge made by non-petitioners No.2 to 4, order dated 14.9.2006 passed by the trial Court by which application filed under Section 125, Cr.P.C. was rejected was set aside and matter was remitted to the trial Court for deciding the application afresh. 3. The trial Court in pursuance of the order passed by the revisional Court dated 29.4.2011 proceeded to hear the application filed under Section 125, Cr.P.C. and, for the said purpose, fixed dates for arguments on 2.6.2011 and 5.7.2011 but, on those dates, counsel for the petitioner took time to argue the matter. On 6.7.2011, Mr. Anwar Khan Advocate filed power on behalf of the petitioner along with certain documents and an application under Section 126(2), Cr.P.C. 4. In the application filed under Section 126(2), Cr.P.C., it was prayed that at the time of recording statements of witnesses, the presence of non-petitioner husband (before the trial Court) was mandatory but the evidence was recorded in his absence, therefore, those witnesses may be recalled and opportunity may be given to cross-examine witnesses Smt. Sarla and Pawan Kumar (witness having identical name as of the petitioner's). 5. Learned counsel for the petitioner submits that the order impugned is illegal because as per Section 126(2), Cr.P.C. the presence of the petitioner husband was necessary at the time of recording statements of Smt. Sarla and her brother Pawan Kumar whose statements were recorded on 28.9.2004 and on 22.7.2005 respectively. 5. Learned counsel for the petitioner submits that the order impugned is illegal because as per Section 126(2), Cr.P.C. the presence of the petitioner husband was necessary at the time of recording statements of Smt. Sarla and her brother Pawan Kumar whose statements were recorded on 28.9.2004 and on 22.7.2005 respectively. It is argued that although both the witnesses were cross-examined by the Advocate of the petitioner but presence of the petitioner was mandatory in view of Section 126(2), Cr.P.C. and judgment rendered by the co-ordinate Bench of this Court in Nand Kumar vs. Smt. Gayatri, reported in 1999(3) WLC (Raj.) 744, therefore, the reasons for which the application has been rejected by the trial Court are not tenable and application filed by the petitioner under Section 126(2) Cr.P.C. for recording statements of Smt. Sarla and witness Pawan Kumar in presence of the petitioner deserves to be allowed and order impugned dated 20.7.2011 passed by the trial Court may be quashed. 6. After hearing learned counsel for the petitioner, first of all, I am of the opinion that learned trial Court has rightly observed in the other impugned that at the time of recording statements of AW-1 Smt. Sarla and AW-2 Pawan Kumar, counsel for the petitioner was present and he thoroughly cross-examined both the witnesses, therefore, the petitioner was very much present though his counsel before the Court at the time of recording statements of the witnesses and said witnesses were thoroughly cross-examined by his counsel. In this view of the matter, it will be deemed that statements of the witnesses were recorded in presence of the petitioner through his pleader. 7. Further, learned trial Court has rightly observed that no such objection was raised by the petitioner soon after recording statements of AW-1 Smt. Sarla on 22.9.2004 and AW-2 Pawan Kumar on 22.7.2005 and, now, at this belated stage, that too, after remand, such application has been filed which is not tenable. Both the reasons given by the trial Court are based upon sound application of mind and order is passed after appreciation of facts and circumstances of the case. 8. Further, the judgment of the co-ordinate Bench in Nand Kumar's case (supra), cited by learned counsel for the petitioner, does not speak that presence through pleader cannot be deemed presence and direct presence in person of the non-petitioner is required. 8. Further, the judgment of the co-ordinate Bench in Nand Kumar's case (supra), cited by learned counsel for the petitioner, does not speak that presence through pleader cannot be deemed presence and direct presence in person of the non-petitioner is required. In this view of the matter, I see no reason to interfere in the order impugned. In my opinion, as per Section 126(2) Cr.P.C. opportunity is to be given to the non-petitioner to cross-examine the witness which has been granted by the trial Court through pleader of the petitioner and the witnesses were thoroughly cross-examined. Therefore, it cannot be said that any violation is committed by the trial Court in recording statements in presence of the pleader of the petitioner. Hence, no case is made out for interference in the impugned order. Accordingly, this miscellaneous petition is hereby dismissed.