Vishal Singh & Ors vs Smt Himani & Anr on 3 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1478 / 2017
1. Vishal Singh S/o Shri Bhanwar Singh @ Bhawani Singh, Aged
About 33 Years

2. Bhanwar Singh @ Bhawani Singh S/o Late Shri Balu Singh,
Aged About 58 Years

3. Smt. Vijay Laxmi W/o Shri Bhanwar Singh @ Bhawani Singh,
Aged About 53 Years, All by Caste Rawna Rajput, At Present
Resident of 56, Surya Nagar, Matki Chouraha, Paota C Road,
Jodhpur (Raj.)
—-Petitioners
Versus
1. Smt. Himani W/o Shri Vishal Singh, D/o Late Shri Mahendra
Singh, Aged About 26 Years, By Caste Rawna Rajput,
Resident of Hathiram Ka Oda, Uparla Bas, Near Sankhla
Shishu Shala, Jodhpur (Raj.)
2. State of Rajasthan
—-Respondents
__
For Petitioner(s) : Mr. P.C. Solanki
For Respondent(s) : Mr. D.S. Baghel
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
03/01/2018

Petitioners have laid this revision petition under Section 397

read with Section 401 Cr.P.C. to challenge order dated

29.11.2017, passed by Additional Sessions Judge (Women

Atrocities Cases) Jodhpur Metropolitan (for short, ‘learned

appellate Court), whereby learned appellate Court has confirmed

order dated 07.09.2017, passed by Additional Chief Metropolitan

Magistrate No.6, Jodhpur Metropolitan (for short, ‘learned trial

Court’).
(2 of 5)
[CRLR-1478/2017]

Succinctly stated the facts of the case are that first

respondent-applicant filed a petition against petitioners (non-

applicants) under Section 12 of the Protection of Women

from Domestic Violence Act, 2005 (for short, ‘Act of 2005’)

before the learned trial Court. During trial, on behalf of

respondent-applicant, her affidavit was tendered in the form

of evidence instead of appearing personally in the witness-

box. Feeling dismayed with the filing of affidavit, petitioners

(non-applicants) submitted objection before the learned trial

Court. In the application, it is, inter-alia, pleaded by

petitioners (non-applicants) that proceedings under Section

12 of the Act of 2005 are akin to the proceedings under

Sections 125, 126 and 127 Cr.P.C., and therefore, procedure

for recording evidence in summons case is to be adhered to.

With this sort of objection, the petitioners (non-applicants)

have craved for rejecting evidence in the form of affidavit

submitted by respondent-applicant. Learned trial Court,

after considering the application in the light of Section 28(2)

of the Act of 2005, rejected the application of petitioners.

Feeling dismayed with the order of learned trial Court,

petitioners preferred an appeal under Section 29 of the Act of

2005 before the learned appellate Court but the said effort of

the petitioners also proved abortive and the learned appellate

Court rejected the appeal. While affirming the order of

learned trial Court, learned appellate Court has also relied on

sub-section (2) of Section 28 of the Act of 2005.
(3 of 5)
[CRLR-1478/2017]

Heard learned counsel for the parties and perused the

material available on record.

At the outset, it would be just and appropriate to

examine Section 28 of the Act of 2005 which lays down

procedure for all the proceedings envisaged therein.

Section 28 of the Act of 2005 reads as under:

28. Procedure.–
(1) Save as otherwise provided in this Act,
all proceedings under
sections 12, 18, 19, 20, 21,
22 and 23 and offences under section 31 shall be
governed by the provisions
of the Code of Criminal
Procedure, 1973 (2 of 1974).
(2) Nothing in sub-section (1) shall prevent
the court from laying down its own procedure for
disposal of an application under
section 12 or
under sub-section (2) of
section 23.

A bare perusal of sub-section (2) of Section 28 of the

Act of 2005 makes it abundantly clear that the Legislature in

its wisdom has conferred discretion on the Court to lay down

its own procedure for disposal of an application under Section

12, or sub-section (2) of Section 23 of the Act of 2005. The

language employed therein is also clear and unequivocal

inasmuch as it starts with non-obstante clause and therefore

for facilitating expeditious disposal of application under

Section 12 and Section 23 of the Act of 2005 Court can

evolve its own procedure. It is needless to observe here that

the Act of 2005 is conceived to protect rights of women and

protect them from atrocities and violence within the family.
(4 of 5)
[CRLR-1478/2017]

Domestic violence is widely prevalent in our Country and

therefore to have a comprehensive legislation on the subject,

the Act of 2005 came into offing. Sub-section (5) of Section

12 of the Act of 2005 also postulates that such application is

to be disposed of with utmost promptitude, preferably within

a period of sixty days from the date of its first filing. The

remedies provided under the Act of 2005, which are

essentially for protecting the rights of women and to prevent

atrocious acts violence against them within family,

therefore, it is necessary and desirable to dispose of a

petition under Section 12 as well as Section 23 of the Act of

2005 at the earliest. That being the reason, sub-section (2)

of Section 28 of the Act of 2005 has conferred wide

discretion on the Court to lay down its own procedure.

My view also finds support from a decision of Madras

High Court in case of Lakshmanan Vs. Sangeetha (Criminal

R.C. No.576/2009, decided on 12.10.2009), wherein the

Court has observed:

“Though like Negotiable Instruments Act, in
the Protection of Women from
Domestic Violence
Act, 2005, it is not specifically stated that the
evidence may be given by the witness on affidavit,
Section 28(2) provides for the deviation from the
normal procedures as contemplated under
the
Code of Criminal Procedure, 1973.
As observed by this Honourable High Court
in the decision cited supra,
Section 145 of the
Negotiable Instruments Act was introduced to
reduce the time taken to complete the trial,
wherein under this Act, as per
Section 12(5) of
the Protection of Women from
Domestic Violence
Act, the Magistrate shall endeavour to dispose of
the application made under Sub-section (1) within
(5 of 5)
[CRLR-1478/2017]

a period of sixty days from the date of its first
hearing. As such, it is open to the Court in order
to reduce the time of consumption for the
proceedings, the Court may allow the chief
examination of the witnesses to be furnished by
affidavit, which is permissible as per
Section 28(2)
of the said Act.”

In totality, the orders passed by both the Courts below,

permitting first respondent to tender evidence in the form of

affidavit, are neither illegal nor improper warranting

interference in exercise of revisional jurisdiction. Moreover,

evidence in the form of affidavit has also not prejudiced the

cause of the petitioners inasmuch as they are well within

their rights to cross-examine the deponent for impeaching

the testimony.

The upshot of the foregoing discussion is that there is

no illegality or impropriety in the impugned order warranting

interference in exercise of revisional jurisdiction of this Court.

Consequently, revision petition fails and the same is

hereby dismissed.

(P.K. LOHRA),J.

Bharti/103

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