1 M.Cr.C.No.861 of 2007

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Single Bench : Hon’ble Shri Rajeev Kumar Dubey, J.

Misc. Criminal Case No.861/2007
Pawan Kumar Jain
vs.
Smt. Sunita Jain
——————————————————————————————–

Shri Manish Datt, Senior Advocate with Shri Pradeep Hazari, counsel for the

applicant.

Shri B.K. Upadhyay, counsel for the respondent No.1.

Shri B.P. Pandey, Govt. Advocate for the respondent No.2/State.

——————————————————————————————–

ORDER

Reserved on : 22.02.2018
Delivered on : 06.03.2018

This petition has been filed under Section 482 of Cr.P.C. against the
order dated 12.01.2007 passed by Second Additional Sessions Judge, Sagar
in Criminal Revision No.7/2007 whereby learned ASJ rejected the
applicant’s revision and affirmed the order dated 06.12.2006 passed by
learned JMFC, Sagar in M.J.C.No.17/2005 (Smt. Sunita Jain v. Pawan
Kumar Jain) whereby learned JMFC rejected the applicant’s application to
set-aside the ex-parte proceedings.

Brief facts of the case which are relevant for the disposal of this
petition are that non-applicant No.1/wife filed an application under Section
125 of Cr.P.C. for getting maintenance from the applicant/husband which
was registered as M.J.C. No.17/2005 and was tried by the JMFC, Sagar.
During trial of the case, on 06.12.2006, at the stage of applicant’s evidence
2 M.Cr.C.No.861 of 2007

(non-applicant’s in this petition), witness Sheel Chandra Jain was present but
applicant (non applicant of that case) and his counsel did not appear before
trial court during hearing of the case for cross examining the witness. So,
learned JMFC closed the applicant’s opportunity of cross examining the
witness and directed to proceed ex parte against the applicant and fixed the
case for final arguments. Thereafter on the same day learned counsel of
applicant filed an application for setting aside the ex parte order which again
was rejected by the trial court. Against that order, applicant filed Criminal
Revision No.7/2007 which was also dismissed by the Second Additional
Sessions Judge, Sagar. Being aggrieved from that order applicant has
preferred this petition.

Learned counsel for the applicant submitted that during trial of the
case applicant filed an application under Order 6 Rule 17 of CPC for
permitting the applicant to incorporate the proposed amendment in his reply.
Learned JMFC rejected that application vide order dated 19.09.2006. Being
aggrieved from that order, applicant filed Criminal Revision No.234/2006.
On 06.12.2006 that revision was also fixed for hearing and revisional court
called for the record of the case from the trial court. That being so, ex parte
proceedings should not have been done by the trial court on said date and
opportunity of cross examining the non applicants’ witness Sheel Chandra
Jain should have been given to applicant by the learned JMFC since
applicant cooperated in the trial throughout and the amount of interim
maintenance was also being regularly paid by the applicant to the non
applicant. No delay was occasioned on behalf of the applicant. At Least one
opportunity should have been afforded by the court below and without
affording adequate opportunity of hearing, passing of an exparte order
contravenes the provisions of law as well as principles of natural justice.
Learned trial court without appreciating these facts wrongly rejected the
applicant’s application. The revisional court also did not properly appreciate
the procedure engrafted under Section 126 of CrPC and mechanically
rejected the applicant’s revision. So, the order passed by the trial court
proceeding ex parte against the applicant deserves to be quashed and
3 M.Cr.C.No.861 of 2007

opportunity of cross examination of witness and for giving evidence be
given.

Learned counsel for the non-applicant No.1 opposed the prayer and
submitted that from the record, it is evident that non-applicant filed
application under Section 125 of Cr.P.C. in the year 1996 and due to
delaying tactics of the applicant, case remained pending for a long time. At
the stage of statement of non-applicant, applicant took long time. Thereafter,
at the time of recording the statement of non-applicant’s witness namely
Sheel Chandra Jain, father of the non-applicant, applicant also took time.
Before 06.12.2006 earlier also on two occasions applicant had also taken
time for his cross-examination. On 06.12.2006 applicant again sought time
for cross-examination of this witness without assigning any proper reason.
So learned trial court did not commit any mistake in rejecting the applicant’s
application.

This Court has gone through the record and the arguments put forth by
the counsels of both the parties. It appears from the record that non-applicant
No.1 filed the application in the year 1996 and her examination-in-chief was
also completed on 04.11.1997 while her cross-examination was finally
completed by the applicant on 03.08.2006 after taking several opportunities
for her cross-examination. Thereafter on 11.10.2006 non-applicant’s witness
Sheel Chandra Jain appeared before the trial court for giving the statement.
On that day his cross-examination could not be completed then case was
fixed for his remaining cross-examination on 08.11.2006. On that day,
applicant again sought adjournment for his cross-examination. Learned trial
court on the payment of cost of Rs.2000/- gave last opportunity to applicant
to cross-examine this witness and fixed the case on 09.12.2006. On that day,
again applicant and his counsel did not appear before trial court to cross-
examine this witness which shows that applicant was negligent and the
reason assigned by the applicant for not appearing before the trial court on
the day fixed for cross examining the witness also does not appear to be
proper but it also appears from the record that other cases are also pending
between the applicant and non-applicant No.1 in District Court Sagar
including the divorce application filed by the applicant.

4 M.Cr.C.No.861 of 2007

So looking to the fact that the applicant gets an appropriate
opportunity to defend the case, in the interest of justice, the petition is
allowed and the impugned order dated 06.12.2006 is set aside, subject to
payment of cost of Rs.11,000/-. The Trial Court is directed to grant him one
opportunity to cross-examine the non-applicant’s witness Sheel Chandra
Jain. It is made clear that if the applicant does not cross-examine Sheel
Chandra Jain on the date so fixed by the trial Court in this regard, the trial
Court shall not be bound to give any further adjournment without any
sufficient reason for further cross-examination of this witness and then
opportunity also be given to non-applicant No.1 to produce remaining
witness if she wants to produce them. Thereafter, fix the case for applicant’s
evidence and dispose of the case as early as possible preferably within six
months from the date of receiving the order, because case is pending since
1996. Both the parties shall cooperate with the trial Court to get the matter
disposed of if necessary by leading evidence day by day.

Both the parties are directed to appear before the trial Court on
20/03/18. The non-applicant No.1 (applicant of the case) is entitled to get
interim maintenance @ Rs.2000/- P.M. as she would have got if the case
were pending before the trial court from the date of order i.e, 06.12.2006.
The amount which the applicant has paid in lieu of order of maintenance,
should be adjusted from this amount.

Office is directed to send the record to trial Court before the said date.
With the aforesaid, the petition is disposed of.

C.C. as per rules.

(Rajeev Kumar Dubey)
Judge
(ra)

Digitally signed by RANJEET
AHIRWAL
Date: 2018.03.06 17:39:29
+05’30’