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2022 DIGILAW 543 (GUJ)

ARCHANA AMIT SHAH v. STATE OF GUJARAT

2022-04-19

VIPUL M.PANCHOLI

body2022
ORDER : 1. This petition is filed under Articles 226 and 227 of the Constitution of India by the petitioner-original complainant in which the petitioner has challenged the order passed by the 23rd Additional Civil Judge and JMFC, Vadodara below application Exh.17 submitted by the petitioner as well as the order dated 25.10.2019 passed by the 5th Additional District and Sessions Judge passed in Criminal Revision Application No.125 of 2019. 2. Heard the petitioner Ms.Archana Amit Shah and respondent no.2 Mr.Amit Hasmukhbhai Shah in person and learned APP for respondent-state. 3. The petitioner has mainly submitted that the petitioner is the wife of respondent no.2. She has preferred application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (`Domestic Violence Act’ for short) before the concerned Magistrate Court. It is submitted that before preparing affidavit for examination-inchief, the present petitioner had stated all the relevant facts to her advocate and handed over all the original documents to him. Thereafter, the said advocate had prepared affidavit of examination-in-chief of the petitioner and the petitioner was called to verify the details. The petitioner visited the office of the concerned advocate to verify the affidavit and it was found that certain relevant and material information is not stated by the advocate while preparing the said affidavit. The petitioner, therefore, informed her advocate accordingly. The concerned advocate, thereafter, assured that he will do the needful and he will prepare fresh affidavit of examination in chief of the petitioner. The petitioner was, thereafter, called on the date of hearing before the Court and the said advocate submitted affidavit for examination in chief of the petitioner. Thereafter, the petitioner came to know that though she has pointed out to her advocate necessary details, they were not incorporated in the affidavit for examination in chief of the petitioner. The petitioner, therefore, filed application and produced additional affidavit for examination in chief before the concerned Magistrate Court. However, the concerned Magistrate passed the impugned order and rejected the said additional affidavit for examination-in-chief on the ground that there is no provision for filing additional affidavit. It is also observed that the petitioner is intentionally delaying the matter. 4. At this stage, it is further submitted that the petitioner thereafter challenged the said order by filing Criminal Revision Application under Section 397 of the Criminal Procedure Code, 1973 before the Sessions Court. It is also observed that the petitioner is intentionally delaying the matter. 4. At this stage, it is further submitted that the petitioner thereafter challenged the said order by filing Criminal Revision Application under Section 397 of the Criminal Procedure Code, 1973 before the Sessions Court. The Sessions Court, vide impugned order dated 25.10.2019, rejected the said application and therefore the present petition is filed. 5. The petitioner submitted that though the petitioner supplied all the details to her advocate, her advocate did not incorporate the material/relevant facts in the affidavit for examination in chief and therefore the petitioner submitted additional affidavit. It is submitted that no prejudice would be caused to the present respondents if the additional affidavit for examination in chief is accepted by the concerned Magistrate Court. The respondents can cross-examine the petitioner on additional affidavit. It is further submitted that the petitioner is not trying to delay the proceedings as observed by the concerned Magistrate Court. The petitioner, therefore, urged that the impugned orders be quashed and set aside and thereby the petitioner be permitted to produce the additional affidavit for examination in chief. 6. On the other hand, respondent no.2 has opposed this petition. The respondent no.2 has referred the affidavit filed by him, copy of which is placed on record at page no.36. It is mainly contended that the petitioner has suppressed material facts. Therefore, only on that ground, the present petition may not be entertained. The respondent no.2 has placed reliance upon the decision rendered by this Court in the case of Vijay J Gadhvi Versus State of Gujarat and others, reported in 1988(2) GLR 902 . The respondent no.2 has also placed reliance upon the decision rendered by the Hon’ble Supreme court in the case of Shri K Jayaram and Others V/s Bangalore Development Authority and Others, reported in 2021(14) Scale 663 . At this stage, respondent no.2 has pointed out from the affidavit in reply that the present petitioner has also filed proceedings under Section 125 of the Code before the concerned Family Court. It is submitted that in the said proceedings also, the affidavit for examination in chief was produced by the petitioner through her advocate. The said advocate is the same advocate who is appearing in the proceedings under the Domestic Violence Act. Both the cases are at the same stage. It is submitted that in the said proceedings also, the affidavit for examination in chief was produced by the petitioner through her advocate. The said advocate is the same advocate who is appearing in the proceedings under the Domestic Violence Act. Both the cases are at the same stage. In the said proceedings also, just a few days prior to filing of additional affidavit in chief, the `so called mistake’ was committed by the petitioner. 7. The respondent no.2 has pointed out from the record that in the proceedings filed under Section 125 of the Code, when the additional affidavit for examination in chief was filed, the same was taken on record by the concerned Family Court. However, the present petitioner filed application Exh.33 and requested the concerned Family Court that the additional affidavit in chief filed by the present petitioner may not be considered. The concerned Family Court, therefore, passed an order on 30.1.2020, copy of the said order is placed on record at page no.76A of the compilation. The respondent no.2 at this stage, submitted that the petitioner has not challenged the said order. At this stage, respondent no.2 pointed out that this Court, vide order dated 22.2.2019, passed in Special Criminal Application No.3932 of 2019 the trial court was directed to proceed with the matter. Copy of the said order is placed on record at page no.64. The respondent no.2, therefore, urged that when the direction is issued by this court to the trial Court to proceed with the matter, when the petitioner is intentionally trying to delay the proceedings, the trial Court has rightly rejected the additional affidavit for examination-in-chief submitted by the petitioner. It is, therefore, urged that this petition may not be entertained. 8. Learned APP submitted that under Section 28(2) of the Domestic Violence Act, the concerned trial Court is empowered to lay down its own procedure for disposal of an application filed under Section 12 of the Domestic Violence Act. Thus, it is open for the concerned Magistrate to accept the additional affidavit for examination-in-chief of the petitioner. Learned APP has placed reliance upon the order dated 22.3.2018 passed by Bombay High Court in Writ Petition No.2938 of 2017. 9. Thus, it is open for the concerned Magistrate to accept the additional affidavit for examination-in-chief of the petitioner. Learned APP has placed reliance upon the order dated 22.3.2018 passed by Bombay High Court in Writ Petition No.2938 of 2017. 9. Having hearing learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner has submitted application under Section 12 of the Domestic Violence Act before the concerned Magistrate Court. In the said proceedings, the petitioner has already filed affidavit for examination in chief. Thereafter, the petitioner submitted additional affidavit for examination in chief before the Magistrate Court on the ground that though she has informed to her advocate about the relevant aspects of the matter, her advocate did not incorporate the relevant aspects while preparing the affidavit for examination in chief of the petitioner and therefore additional affidavit for examination in chief is required to be filed. It is pertinent to note that both the Courts below have specifically observed that there is no provision in the Evidence Act for producing additional examination in chief. The petitioner has failed to point out any such provision during the course of hearing of the present petition. It is only contended that no prejudice will be caused to the respondents if the said additional examination in chief is accepted by the concerned Magistrate Court. It is pertinent to note that similar type of additional affidavit for examination-in-chief was produced before the concerned Family Court in the proceedings filed under Section 125 of the Code. Initially, the Family Court accepted the said additional affidavit, however, when the present respondent no.2 submitted an application, the concerned Family Court passed an order on 30.1.2020, the said order is placed on record at page no.76A of the compilation. In the said order, it is specifically observed by the Family Court that by producing additional affidavit for examination in chief, petitioner cannot fill in the lacuna and additional affidavit was not accepted and ordered to be removed from the file. It is the case of the respondent no.2 that the aforesaid order dated 30.1.2020 passed by the concerned Family Court is not challenged by the petitioner. 10. It is the case of the respondent no.2 that the aforesaid order dated 30.1.2020 passed by the concerned Family Court is not challenged by the petitioner. 10. Thus, in absence of any provision for accepting additional affidavit for examination-in-chief and in the facts and circumstances of the present case as discussed hereinabove, when both the Courts below have not committed any error while rejecting the request of the petitioner, no interference is required in the present petition which is filed under Article 227 of the Constitution of India. The petition is accordingly dismissed.