CRR(F) No.79 of 2017(OM) [1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Criminal Revision (F) No. 79 of 2017(OM)
Date of Decision: May 23 , 2017.

Manish Tandon …… PETITIONER (s)
Versus
Ankita Bhutani …… RESPONDENT (s)

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Petitioner-in-person.
*****
LISA GILL, J.

The petitioner is aggrieved of order dated 13.02.2017 passed by the

learned District Judge (Family Court), Sonepat whereby two applications filed by

the petitioner (referred to as the 2nd application and 3rd application in the

impugned order) have been decided.

It is to be noted that there is a matrimonial dispute between the

petitioner and the respondent. Proceedings in FIR No.6 dated 12.02.2012 under

Sections 498A/406/420/323/506/34 IPC lodged at the behest of the respondent

are pending. The respondent – wife filed a petition (bearing No.133 of 2012)

under Section 125 Cr.P.C. claiming maintenance, which was dismissed as

withdrawn on 15.12.2012. Thereafter another petition under Section 125 Cr.P.C.

(i.e. wherefrom the present proceedings emanate) was filed by the respondent. It

is stated that the respondent’s application for grant of interim maintenance in the

second petition under Section 125 Cr.P.C. was dismissed by the learned District

Judge (Family Court), Sonepat on 10.05.2016.

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The petitioner moved an application dated 17.12.2016 under Order

23 CPC (Annexure P3, referred to as the 2nd application in the impugned order)

for dismissal of the petition filed by the respondent under Section 125 Cr.P.C.

being not maintainable on the ground that once her earlier petition under Section

125 Cr.P.C. was dismissed as withdrawn without any specific liberty having

been afforded to the respondent to file afresh, a second petition under Section

125 Cr.P.C. is not maintainable. Another application (Annexure P4, referred to as

the 3rd application in the impugned order) was filed by the petitioner under Order

18 Rule 17 CPC and Section 138 of the Indian Evidence Act for recalling and re-

examining one of his own witness RW1 Mr. B.M.Pandey.

Learned trial court on considering the entire facts and circumstances

of the case rejected the said applications moved by the petitioner vide common

impugned order dated 13.02.2017. Aggrieved therefrom, the petitioner has filed

the present revision petition.

The petitioner vehemently argues that a second petition under

Section 125 Cr.P.C. is not maintainable once the first petition has been dismissed

as withdrawn without a specific permission to file afresh. He first of all refers to

Section 10 of the Family Courts Act, 1984, which reads as under:-

“10. Procedure generally.-(1) Subject to the other provisions of this
Act and rules, the provisions of the Code of Civil Procedure, 1908(5
of 1908), and of any other law for the time being in force shall apply
to the suits and proceedings other than the proceedings under
Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974),
before a Family Court and for the purpose of the said provisions of
the Code, a Family Court shall be deemed to be a Civil Court and
shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the

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provisions of the Code of Criminal Procedure, 1973 (2 of 1974), or
the rules made thereunder, shall apply to the proceedings under
Chapter IX of the Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a
Family Court from laying down its own procedure with a view to
arrive at a settlement in respect of the subject-matter of the suit or
proceedings or at the truth of the facts alleged by the one party and
denied by the other.”

The petitioner then refers to Section 257 Cr.P.C., which reads as

under:-

“257. Withdrawal of complaint. If a complainant, at any time
before a final order is passed in any case under this Chapter, satisfies
the Magistrate that there are sufficient grounds for permitting him to
withdraw his complaint against the accused, or if there be more than
one accused, against all or any of them, the Magistrate may permit
him to withdraw the same, and shall thereupon acquit the accused
against whom the complaint is so withdrawn.”

The petitioner on the one hand submits that provisions of the Code

of Criminal Procedure are applicable in the present proceedings whereas on the

other, it is submitted that as the present proceedings have a definite civil flavour,

the Code of Civil Procedure is applicable in the present situation in respect to

withdrawal of the petition. In this regard, he refers to a judgment of the Hon’ble

Supreme Court in Vijay Kumar Prasad v. State of Bihar and others (2004) 5

SCC 196.

The petitioner thus submits that in terms of Order 23 Rule 3 4

CPC, a second petition under Section 125 Cr.P.C. is barred in case specific

permission to file afresh has not been granted. Reference is made to the

judgment of Bombay High Court in Sou. Janabai v. Krishna Ravba Rithe and

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another, 1993 Cri.LJ 1183 (Annexure P10). It is argued that the application filed

by the respondent is on the same set of facts and circumstances therefore, the

same is barred. Therefore, the second petition/application under Section 125

Cr.P.C. should be dismissed. The learned trial court has erred in passing the

impugned order which should be set aside.

In respect to the application filed by the petitioner seeking recall of

RW1 Mr. B.M.Pandey for re-examination, the petitioner submits that once there

is a contradiction in the statement of a witness, it is incumbent upon the court to

recall the said witness. The petitioner is not seeking to fill-up any lacunae but

wishes to seek a clarification in respect to a contradiction which has arisen in the

statement of RW1 Mr. B.M.Pandey, a witness examined by the present petitioner

to prove his case. The said witness in his examination-in-chief (by way of his

affidavit dated 15.09.2016) stated that he visited the premises of the respondent

on 05.11.2014 and saw two banners hanging outside the premises. He again

visited the premises of the respondent on 01.12.2014 and recorded an audio-

video conversation with her on his mobile phone of Carbonn company bearing

model No.A-35. He took a print-out of the banners and handed them over to the

petitioner. A certificate under Section 65B of the Indian Evidence Act was also

issued by RW1 Mr. B.M.Pandey.

The petitioner submits that in the cross-examination, RW1

B.M.Pandey has however stated that conversation was not prepared by him and

the transcript was also not prepared by him. It is this stand of RW1 that the

petitioner seeks to clarify. It is submitted that he wishes to clarify this apparent

contradiction in the statement of RW1 Mr. B.M.Pandey. The petitioner relies

upon a judgment of Kerala High Court in Valsamma v. Satheesh Kumar, 2001

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Cri.LJ 1574 (Annexure P8) to submit that he merely seeks to explain a

circumstance and establish that it is a mistake on the part of the said witness. It is

not a case where he is seeking to fill-up a lacunae. Therefore, the learned trial

court has power or discretion under Section 311 Cr.P.C. to recall a witness. The

petitioner relies upon the judgment of the Hon’ble Supreme Court in Mohan Lal

Shamlal Soni v. Union of India and another, 1991 AIR 1346 (Annexure P5) to

urge that the trial court has wide power to recall a witness. He further relies upon

the judgment of the Hon’ble Supreme Court in Rammi @ Rameshwar v. State of

Madhya Pradesh, decided on 21.09.1999 (Annexure P6) to contend that a witness

may be recalled for re-examination to explain a certain ambiguity which has

emanated from his cross-examination. Reliance is also placed on a judgment of

the Gujarat High Court in Pushpendrasinh @ Paresh Vaghela v. State of

Gujarat, Special Criminal Application No.3082 of 2012 decided on 08.02.2013

(Annexure P7). Judgment of the Hon’ble Supreme Court in Anvar P.V. v.

P.K.Basheer and others, Civil Appeal No.4226 of 2012 decided on 18.09.2014

which deals with the admissibility of electronic evidence/record is referred to by

the petitioner.

It is urged that, first and foremost, petition under Section 125 Cr.P.C.

itself be dismissed being not maintainable. In the alternate, the application under

Order 18 Rule 17 CPC and Section 138 of Evidence Act be allowed and the

petitioner be permitted to re-examine RW1 B.M.Pandey on the contradiction as

mentioned above. It is thus prayed that this petition be allowed and impugned

order dated 13.02.2017 passed by the learned trial court be set aside.

I have heard the petitioner at length and have carefully gone through

the file.

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Without going into the question of maintainability of the present

revision petition as to whether one revision petition would be maintainable in the

present situation where two separate applications have been disposed of by the

learned District Judge (Family Court), Sonepat by a common order, it is

considered just and expedient to decide this matter on merits in order to obviate

any delay in the proceedings under Section 125 Cr.P.C. Be that as it may, the

petitioner is unable to point out any bar to the filing of a second petition under

Section 125 Cr.P.C. Section 10 of the Family Courts Act, 1984 provides that

provisions of Code of Civil Procedure shall be applicable to suits and

proceedings other than those under Chapter IX of the Code of Criminal

Procedure i.e. provisions relating to maintenance of wives, children and parents.

It is to be noted that the petitioner has filed the application Annexure P3 under

Order 23 CPC. For the sake of arguments, even taking or assuming the

contention of the petitioner to be correct that proceedings under Section 125

Cr.P.C. would have a civil flavour, Order 23 Rules 3 4 CPC does not act as an

absolute bar to the filing of a subsequent petition under Section 125 Cr.P.C.

claiming maintenance in the present factual matrix. It is not in dispute that right

to maintenance is a recurring cause of action. Furthermore, the earlier petition

filed by the respondent was not decided on merits. It cannot be denied that once

there is no adjudication on the merits of a case, the second application would not

necessarily be barred solely because of the withdrawal of the earlier petition.

Furthermore, Section 125 Cr.P.C. is admittedly a piece of beneficial legislation.

Therefore, a restricted or a hyper-technical view in such matters is not to be

countenanced.

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The judgment of the Bombay High Court in Sou Janabai’s case

(supra) does not advance the petitioner’s case. In the said case, it was pleaded

that a subsequent application for maintenance under Section 125 Cr.P.C. filed by

the wife was barred by res judicata. The first application moved by the wife in

this case was dismissed on merits. After about 17 years, another application for

maintenance was filed by her. This application was dismissed being barred by res

judicata. The Bombay High Court set aside the said orders holding that the

second application is not hit by the principles of res judicata as the second

application has been filed under different circumstances.

In the present case, the first petition filed by the wife was dismissed

as withdrawn on 15.12.2012 and admittedly there is no adjudication of the matter

on the merits of the case. Right to maintenance is admittedly a recurring cause of

action. The judgment of the Hon’ble Supreme Court in Vijay Kumar’s case

(supra) does not in any manner hold that a second application under Section 125

Cr.P.C. is per se barred. The question involved in Vijay Kumar’s case (supra) was

regarding jurisdiction of the court to entertain the petition under Section 125

Cr.P.C. Vijay Kumar’s case (supra) was discussed by the Hon’ble Supreme Court

in its subsequent judgment in Dawalsab v. Khajasab (2009) 14 SCC 660. The

other judgments cited by the petitioner are also not applicable in the facts and

circumstances of this case. Therefore, I do not find any ground to interfere in the

decision of the learned trial court in this respect.

In respect to the prayer of the petitioner for re-examination of RW1

Mr. B.M.Pandey, it is to be noted that the petitioner preferred an application

under Order 18 Rule 17 CPC and Section 138 of the Indian Evidence Act for

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recalling and re-examining RW1. He has addressed arguments in respect to the

power of the trial court to recall a witness under Section 311 Cr.P.C. As far as the

position of law is concerned, there is no doubt regarding the power of the court to

recall a witness for re-examination in a given case. The trial court is unfettered in

its power under Section 311 Cr.P.C. to summon a material witness, recall or re-

examine any person if it appears to be necessary for the just decision of the case.

Section 138 of the Indian Evidence Act reads as under:-

“138. Order of examinations. – Witnesses shall be first examined-
in-chief, then (if the adverse party so desires) cross-examined, then
(if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant
facts, but the cross-examination need not be confined to the facts to
which the witness testified on his examination-in-chief.

Direction of re-examination.- The re-examination shall be
directed to the explanation of matters referred to in cross-
examination; and, if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross-
examination upon that matter.”

There is also no quarrel with the proposition of law that in case an

explanation is required for any matter, re-examination of a witness can be

directed.

In the present case, the petitioner urges that RW1 B.M.Pandey in his

cross-examination has stated that the conversation in question was not prepared

by him and neither was the transcript prepared by him whereas in his

examination-in-chief (by way of affidavit) he has stated otherwise. The relevant

part of the affidavit of RW1 Mr. B.M.Pandey reads as under:-

“2. That on 01.12.2014 I again visited the aforesaid premises and

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talked to the neighbour of Ankita Bhutani and recorded the audio
video conversation on my mobile phone of Carbonn company
bearing model No.A-35. Thereafter, I contacted Ankita Bhutani and
also talked to her and recorded the audio-video conversation with
Mrs.Ankita Bhutani on my mobile phone of Carbonn company
bearing model No.A-35.

3. That I had taken the print out of the banners and handed over
the copy thereof to the respondent which has been attached with the
reply to the petition as Annexures P-6 (and also exhibited herein as
Exhibit R-2 (colly) and transcription of the audio video recording of
the conversation dated 01.12.2014 with Ankita Bhutani and her
neighbourer is also exhibited herein as Exhibit R-3 (colly) and same
was also annexed by the respondent in para No.12 and 13 of the
preliminary submissions and in para No.10 of the parawise reply.
That audio video recording dated 05.11.2014 and 01.12.2014 was
performed by me in my mobile phone of Carbonn company bearing
model No.A-35 at the residence of Ankita Bhutani.

4. That I had transferred the audio video recording of the banners
and conversations from my mobile to my computer through data
cable. Thereafter, the aforesaid information was copied in the
Compact Disc CD/DVD and given to the respondent Manish Tandon
for annexing in the present proceedings. The aforesaid CD/DVD is
annexed herein as Exhibit R-4 and already annexed by the
respondent as Exhibit P-1 with the reply filed to the petition under
Section 125 Cr.P.C., Ankita Bhutani versus Manish Tandon, Case
No.44/2013 pending adjudication before this Hon’ble Court.

5. I identify the mobile phone of Carbonn company bearing
model No.A-35 and audio video recording of the conversations dated
05.11.2014 and 01.12.2014 with Ankita Bhutani and her
neighbourer.

6. I also certify that the computer output containing the
information was produced by the computer during the period over
which the computer was used regularly to store or process

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information for the purposes of activities regularly carried on over
that period by me and during the said period, audio video recording
of the videography of the banners and conversation of Ankita and
her neighbourer with me in my mobile phone was regularly fed in to
the computer in the ordinary course of the said activities and
throughout the material part of the said period, the computer was
operating properly and the information contained in the computer
reproduces such information fed in to the computer.”

Relevant portion of the cross-examination of RW1 B.M.Pandey

reads as under:-

“xx xx xx xx
I am not a summoned witness. I have come in this case thrice at the
instance of respondent. On 05.11.2014, I had gone to the residence
of the petitioner at the instance of the respondent. I reached the
house of the petitioner after asking the people who met me on the
way. Photographs Ex.R2 was taken by me. It is correct that it is not
made out from the photo Ex.R2 that this house belongs to late Sh.
Bhim Sain Bhutani. It is also correct that it is not made out from the
board that this institute is being run by the petitioner. I have no
documentary proof that my daughter had ever studying in the
institute, the board of which, is appearing. I know the respondent for
the last three years. I am on visiting terms with him. I do not know
where the respondent was serving. I do not get the voice of the
petitioner tested from any Lab etc. Self stated, that I had given the
same to the respondent. Conversation was not got prepared by me.
Self stated that I had given the CD to the respondent. It is wrong to
suggest that the transcription is not correct. It is further incorrect to
suggest that the photos were also got prepared by way of camera
trick etc. It is correct that transcription Ex.R6 was also not prepared
by me. CD was prepared by me myself. I came to Sonipat twice that
is on 05.11.2014 and 01.12.2014.”

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I have gone through the evidence of RW1 B.M.Pandey by way of

affidavit as well as the cross-examination which is attached with the present

petition. It has been observed by the learned trial court in order dated 13.02.2017

that the cross-examination of RW1 was concluded on 10.11.2016 however, no

request for re-examination of the said witness was addressed by the petitioner at

that time. The application was subsequently moved by him on 17.12.2016.

Though this fact in itself may not be enough to non-suit the petitioner, I do not

find that there is any necessity to recall the said witness for any clarification as

urged by the petitioner. The so-called contradiction, if any, would be taken into

account by the learned trial court at the time of final decision of the case. The

petitioner is unable to point out any material clarification that is required in

reference to the alleged contradiction in the cross-examination of RW1

B.M.Pandey. There is no patent illegality or irregularity in the decision arrived at

by the learned trial court.

No illegality, infirmity or perversity is pointed out by the petitioner

in the impugned order dated 13.02.2017 passed by the learned District Judge

(Family Court), Sonepat which calls for any interference by this Court in exercise

of its revisional jurisdiction.

Consequently, finding no merit, this petition is dismissed.

It is however clarified that none of the observations made hereinabove

shall be construed to be a reflection on the merits of the case. The same are solely

confined for the purpose of decision of the present petition.

                                                          ( LISA GILL )

May 23 , 2017.                                                JUDGE

'om'

                     Whether speaking/reasoned: Yes/No

                     Whether reportable:        Yes/No
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