Sudhakaran K.P. v. Thusha and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **OP(Crl.).No.421 OF 2019** **AGAINST THE ORDER/JUDGMENT IN MC 162/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA** ## **PETITIONER:** **SUDHAKARAN K.P., AGED 51 YEARS S/O.KELAPPAN, KELOTH KUNNATH HOUSE, KILUR P.O., PAYYOLI VIA, KOZHIKODE DISTRICT, NOW RESIDING AT SOUPARNIKA, NELLIANKARA, P.O.CHORODE VATAKARA, KOZHIKODE DISTRICT, PIN -673 106.** **BY ADVS. SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI** ## **RESPONDENTS:** **1 THUSHA, W/O.SUDHAKARAN, SOUPARNIKA, NELLIANKARA, P.O.CHORODE VATAKARA, KOZHIKODE DISTRICT, PIN - 673 106.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **R1 BY ADV. SRI.T.G.RAJENDRAN** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(Crl.).No.421 OF 2019** **2** ## **ALEXANDER THOMAS, J.** ## **-----------------------------------------** ## **O.P.(Crl.) No. 421 of 2019** **----------------------------------------Dated this the 3o[th] day of October, 2019** ## **JUDGMENT** The case projected in this O.P.(Crl.) filed under Article 227 of the Constitution of India is as follows : _“Petitioner is the respondent in M.C.No.162/2016 JFCM Court-I, Vatakara, a proceedings initiated under the Domestic Violence Act. The proceeding is being continued for the last 3 ½ years. At last, after completing recording of evidence, the case was posted for hearing. At that time, the first respondent filed Exhibit P3 and P4 applications to re-open the evidence and to recall RW1 (petitioner). Ignoring the objections of the petitioner as well as the finding of the Court below that the petitions are filed at a highly belated stage, the Court below opted to allow the petitions in a mechanical manner, on the ground that the right of the first respondent to adduce evidence cannot be denied. The prayers were allowed on payment of cost of Rs.1000/- as per Exhibit P7 order._ _Re-opening of the evidence and recalling of RW1 at a highly belated stage and that too for the sole purpose of marking the deposition given by RW1 subsequently in another case pending before another court, besides being dilatory tactics so as to harass the petitioner, it also causes serious prejudice and irredeemable hardships to the petitioner.”_ 2. In the light of the abovesaid facts and circumstances, it is contended by the petitioner that the impugned Ext.P7 order passed by the learned Magistrate is illegal and improper. It is in the light of these averments and contentions that the petitioner filed the above original petition with the following prayers : _“i) Set aside Exhibit P7 Order dated 29.07.2019 passed by the Judicial First Class Magistrate Court-I, Vatakara_ _(ii) Issue any other appropriate order or direction which as the petitioner may pray later and this Hon'ble Court may deem fit and_ **OP(Crl.).No.421 OF 2019** **3** _necessary to issue in the interest of justice.”_ 3. Heard Sri.P.Venugopal, learned counsel appearing for the petitioner (husband), Sri. T.G.Rajendran, learned counsel appearing for the 1[st] respondent (wife) and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R2- State of Kerala. The impugned Ext.P7 order dated 29.07.2019 rendered by the Judicial First Class Magistrate Court-I, Vatakara in CMP No. 3947/2019 & CMP No. 3948/2019 in M.C.No.162/2016 reads as follows : _“This is an application filed u/s 311 of CrPC to re-open the evidence of respondent and to recall witnesses in CMP._ _2. Case of the petitioner is as follows :- The petitioner is the petitioner in MC 162/2016 and the petition is filed to re-open the evidence of respondent. According to the petitioner a case is pending before Family Court, Vatakara between petitioner and the respondent and evidence is adduced by the petitioner and respondent. The petitioner wants to mark the certified copy of the evidence given by respondent at Family Court. Hence this petition._ _3. Respondents filed counter denying the averments in the petition. Respondent contended that there is no need of marking the evidence given by him at Family Court. So, the petition is liable to be dismissed. 4. Heard both sides._ _5. It is to be noted that the MC 162/16 is posted for final hearing and the petitioner filed this application for re-opening the evidence of respondents for marking a document through him. This petition is filed at a belated stage, but the right of the petitioner to adduce evidence to this case cannot be denied. At the interest of justice I am of the view that this petition can be allowed. At the same time the right of the respondent should not be deprived. The time and energy of respondent should taken into account. So the petition is allowed on condition of payment of cost._ _In the result, petition is allowed on payment of cost Rs.1,000/-.”_ 4. Both sides have made their respective arguments. Sri.P.Venugopal, learned counsel appearing for the petitioner has placed serious reliance on the judgment of the Apex Court in the case in _**Mishrilal and others v. State of Madhya Pradesh and others**_ **OP(Crl.).No.421 OF 2019** **4** ## **[2005 (10) SCC 701 = 2005 KHC 1776]** (See para No.6 of SCC report) ## which reads as follows : _“In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in chief and cross examined fully, such witness should not have been recalled and reexamined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses.”_ 5. The learned counsel for the petitioner would point out that it is now well established that a witness could be confronted only with a previous statement made by him and in the instant case, RW1 was examined in the instant MC No. 162/2016 before the learned Magistrate in the Domestic Violence Act proceedings, at a time when even the evidence before the Family Court was not tendered. Therefore, the permission granted by the learned Magistrate in confronting the witness with the statement subsequently given by him before the Family Court is not legal and proper, as the witness could be confronted only with the previous statement, which means that no cross examination is permissible in respect of the subsequent statement. 6. The learned counsel appearing for the petitioner has also placed **OP(Crl.).No.421 OF 2019** **5** reliance on various other judgments of the Apex Court as in _**Hanuman Ram** v._ _**State of Rajasthan and others AIR 2009 SC 69 = 2008 (15) SCC 652.** Further that in_ _**Anil Mon Thomas & anr.** v._ _**Central Bureau of Investigation & others [2011 (4) KHC 713],**_ following the dictum laid down by the Apex Court in the aforesaid **Mishrilal's case (Supra)** has held as follows : _“Though S.311 Cr.P.C. enables the Court to recall the witness for further …..................examination, it cannot be done as a matter of course for the mere asking of it by the accused or by the witness himself.”_ 7. In the instant case, it is beyond any controversy that the evidence was tendered by RW1 in the present DV Act proceedings before the learned Magistrate at a time well before the tendering of evidence by the said witness before the Family Court and therefore evidently, the statement made by the witness before the Family Court is on a subsequent occasion cannot be said to be a previous statement, which could be utilized for confronting the witness before the learned Magistrate in the DV Act proceedings. It has been stipulated in Sec.28(1) of the Protection of Women from Domestic Violence Act that save as otherwise provided in this Act, all proceedings under Secs. 12, 18, 19, 20, 21, 22 and 23 and offences under Sec.31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. However, sub-section (2) of Sec.28 would further stipulate that nothing in the aforesaid sub-section (1) shall prevent the **OP(Crl.).No.421 OF 2019** **6** Court from laying down its own procedure for disposal of an application under Sec.12 or under sub-section (2) of Sec.23. It has to be borne in mind that the aforecited judgments of the Supreme Court have been laid down in the context of applicability of Sec.311 of the Cr.P.C and that too, in dominantly in the case of criminal trial wherein one of the cardinal perspectives is regarding the presumption of innocence of the accused until proved otherwise. Therefore, the said perspective, which is taken into account while dealing with criminal trials of persons who are accused of criminal offences may not apply with all its rigour in a case of proceedings under DV Act. It is all the more so, now the Apex Court has held with all certainty and clarity in decisions as in _**Shalu Ojha v. Prashant ojha [2018 (8) SCC 452]**_ and _**Kunapareddy @ Nookala Shanka Balaji v. Kunapareddy Swarnakumari and anr. [2016 (11) SCC 774]**_ that the proceedings in the realm of the Domestic Violence Act are of essence and substance civil proceedings in nature though subject to the applicability of Cr.P.C. as stipulated in Sec.28(1) of the DV Act. But that, it has also remembered that Sec.28(2) of the DV Act also mandates that nothing in Sec.28(1) shall prevent the DV Act Court from laying down its own procedure for disposal of an application under Sec.12 or Sec.23(2). In the instant case, the application that has been filed before the learned Magistrate under the DV Act is one under Sec.12 of the said Act. In very many cases, it happens that the claimants for maintenance approach not **OP(Crl.).No.421 OF 2019** **7** only the Family Court under Sec.125 of the Cr.P.C., but also resorts to the remedies available under DV Act and at times, the same claimants make claims one after the other under both the enactments. The claims are essentially in relation to grant of maintenance. The enquiry that is contemplated essentially is one summary procedure. When, disputes of the same nature are sought to be agitated in different fora in the matter of grant of maintenance, it is only fair and proper that the court concerned have a comprehensive look at the evidence tendered by the rival parties in the other fora, if it is otherwise relevant and admissible. 8. In view of the summary nature of the enquiry proceedings in maintenance claims and also in view of the specific provision endrafted by the Parliament in Sec.28(2) of the DV Act that the court is otherwise equipped to follow a reasonable procedure, notwithstanding the provisions of the Cr.P.C., the DV court has the discretion to permit adducing of such evidentiary materials emanating from the other fora. In this case, the original petition filed by the wife before the Family Court includes a claim for past maintenance. 9. So the conclusion raised by the learned Magistrate in the impugned Ext.P7 order does not appears to be perverse or unfair. Moreover, it may be only fair to the parties concerned that the evidence tendered in the other fora is also made available, so that if there is any apparent divergences or contradictions, the other party could get a **OP(Crl.).No.421 OF 2019** **8** reasonable opportunity to explain the details thereof. Therefore, it would only sub serve the ends of justice by adopting such a fair procedure of confronting the witness with such materials from the Family Court. This is all the more so, when claims in both the fora are relating to grant of maintenance, so that contradictory decisions are not rendered on substantially the similar disputes by different fora. 10. Hence, this Court is of the considered view that since the ultimate conclusion arrived at by the learned Magistrate in the impugned Ext.P7 order is not perverse or unfair, this Court need not exercise its discretion so as to interdict the said order. However, since it was a belated request, the learned Magistrate should have imposed higher cost than the one awarded as Rs.1,000/-. Accordingly, it is ordered that no interference is called for in the conclusion arrived at by the learned Magistrate in the impugned Ext.P7 order. But the cost amount will stand modified as Rs.2,500/-. The 1[st] respondent will pay the said cost amount to the learned counsel appearing for the petitioners herein before the learned Magistrate and obtain receipt in that regard. It is made clear that in case the petitioner has already paid the original amount of Rs.1,000/-, the same could be adjusted. However, in case the petitioner does not remit the original cost amount as above directed within 10 days from the date notified for receiving the certified copy of the order, then the impugned Ext.P7 order will stand set aside. The learned Magistrate will ensure that the main **OP(Crl.).No.421 OF 2019** **9** matter in M.C. is disposed of without any further delay, at any rate ,within a period of 1 month from the date of production of a certified copy of the judgment. With these observations and directions, the above O.P.(Crl.) will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ## **SKS** **OP(Crl.).No.421 OF 2019** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PETITION FILED BY THE FIRST RESPONDENT AS MC NO.162/2016.** **EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN MC NO.162/2016.** **EXHIBIT P3 TRUE COPY OF THE PETITION FILED BY THE FIRST RESPONDENT AS CMP NO.3947/2019 IN MC NO.162/2016.** **EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN CMP NO.3947/2019 IN MC NO.162/2016.** **EXHIBIT P5 TRUE COPY OF THE PETITION FILED BY THE FIRST RESPONDENT AS CMP NO.3948/2019 IN MC NO.162/2016.** **EXHIBIT P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN CMP NO.3948/2019 IN MC NO.162/2016. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29/07/2019 PASSED BY THE JFCM COURT-I, VATAKARA IN CMP NO.3947/2019 & CMP NO.3948/2019 IN MC NO.162/2016.**