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2019 DIGILAW 2561 (ALL)

Radheshyam @ Anil v. State Of U. P.

2019-11-15

KARUNA NAND BAJPAYEE

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JUDGMENT : Karuna Nand Bajpayee, J. 1. This revision has been preferred with the prayer to set aside the impugned order dated 21.10.2019 passed by the Principal Judge, Family Court, Sant Kabir Nagar in Case No.72/11/2018 (Bandana Devi and another vs. Radheshyam @ Anil) u/s 125 Cr.P.C., Police Station-Kotwali Khalilabad, District-Sant Kabir Nagar and to direct the learned court below to give opportunity to the revisionist to cross-examine the opposite party no.2. 2. Heard learned counsel for the revisionist and learned A.G.A. 3. Submission of counsel for the revisionist is that opposite party no.2 Bandana, who is the wife of the revisionist, had been produced in the court and her examination-in-chief was recorded but as the counsel for the husband-revisionist did not appear, the opportunity of her cross-examination was closed. Further submission is that in the absence of effective cross-examination the cause of revisionist shall suffer beyond repair and the fairness of the proceedings will also get vitiated. It has been further submitted that it is not only in the interest of the husband-revisionist but it shall also go to deprive the court from appreciating the facts in correct perspective. It has also been submitted that an untested testimony becomes often misleading and deceitful to be relied upon and before the court should act upon the deposition of a witness, it is very essential to test the same on the anvil of cross-examination. Submission is that at least one opportunity may be granted so that the revisionist may cross-examine the wife who is a very essential witness in the case and the fate of the case will turn upon the quality of her statement and the evidentiary value which she shall carry. 4. Heard learned A.G.A. and perused the record. 5. Ordinarily this Court would have proceeded in the matter after issuance of notice to the opposite side but in that course the proceedings would have taken much longer time as in the wake of heavy pendency of cases where dockets are already bursting on their seams, there is no likelihood of this revision to be taken up at an early date. Moreover, as the only point involved in this case relates to the principles of justice, equity and fairness and no great point of law or fact is involved, therefore, this Court deems it proper to decide this revision at this very stage so that the proceedings of the case may get expedited and the matter may not be allowed to shelve for a longer period of time. 6. After perusing the impugned order this Court finds that though no serious castigation against the impugned order may be levelled and it cannot be said that the same suffers from any element of perversity but when the overall cause of justice is evaluated and weighed and the principles of fairness and equity are kept in perspective this Court adopts a view which may not only meet the ends of justice but may also result in adopting a correct approach in order to arrive at the ends of justice. Leaving a wife uncross-examined is likely to result in creating obstacle in correctly appreciating the evidence and to that extent and in that context the approach adopted by the court below may not be said to be a correct one. Moreover, perusal of the order-sheet also shows that there have been many dates on which even the wife did not appear in the court and it cannot be said that the liability for the delay was squarely on the shoulders of the revisionist. This Court is of the considered opinion that it shall go to further the cause of justice and also shall go to render assistance to the court to appreciate the facts in the right and broader perspective, if it grants at least one further opportunity to cross-examine the wife. 7. Without going further into the matter, this Court deems it appropriate to direct that the revisionist shall move again an application seeking the recall of witness Bandana, whenever the case is taken up again after mediation process. If such an application is moved on behalf of the revisionist, the court below will proceed to summon aforesaid witness Bandana and provide opportunity to the husband-revisionist to cross-examine her. 8. The revisionist is also directed to deposit Rs.5000/-as a matter of cost/expenses and this money shall be given to the witness Bandana whenever she appears for the purpose of cross-examination. 9. 8. The revisionist is also directed to deposit Rs.5000/-as a matter of cost/expenses and this money shall be given to the witness Bandana whenever she appears for the purpose of cross-examination. 9. It is made clear that whenever witness Bandana appears for cross-examination she shall be cross-examined on that very day and no further adjournment on behalf of revisionist shall be sought or granted. If the opportunity of cross-examination shall not be availed on the first date for the reason of non availability of the counsel or for any reason which may be attributable to the revisionist, her evidence shall stand closed and the concerned court below shall thereafter proceed further in accordance with law. 10. As it appears from the impugned order that the matter has already been referred to the Mediation Centre, it is also being clarified that this order shall come into application only if the result of the mediation is negative and the litigation continues. But if the matter gets settled, it goes without saying that there would be no need either to move any such application or to recall the witness for the purpose of cross-examination. 11. The revision stands allowed in aforesaid terms and the impugned order so far as it relates to the refusal of Court to summon the aforesaid witness for cross-examination stands set aside.