* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 11.02.2020
+ CRL.REV.P. 812/2018 and CRL.M.A. 32415/2018 (stay)

IN THE MATTER OF:

SUNITA VERMA ORS ….. Petitioners
Through: Mr. Lakshay Mangla, Advocate

Versus

PERMANAND VERMA ….. Respondent

Through: Ms. Shivangi Nanda and Ms. Sajni
Kachwaha, Advocates

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J (ORAL)

1. The present petition is directed against the order dated 04.09.2018
vide which the petitioner’s application seeking recall of the order dated
13.03.2018 passed by the Principal Judge (South) Family Courts, Saket,
New Delhi was dismissed.

2. The Family Court vide order dated 13.03.2018 closed the petitioner’s
evidence and listed the matter for defence evidence. On 04.09.2018, while
dismissing the petitioner’s application for recall of the order dated
13.03.2018, the opportunity to cross-examine the respondent, was also
closed.

3. The present proceedings arise out of a complaint case filed under
Section 125 Cr.PC for grant of maintenance by the petitioner/wife. As per

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the facts of the case, the petitioner got married to the respondent on
04.12.2005 as per Hindu Rites and Ceremonies. The petitioner, having no
source of income, is presently residing along with her three children in
Mathura and is totally dependent on her mother and brother. The petitioner
has also filed a complaint which was registered as FIR No.12/2013 under
Sections 498A/406 at P.S. CAW Cell, Nanak Pura, Delhi as well as a
complaint case under Section 12 of the DV Act.

4. Learned counsel for the petitioner submitted that the petitioner has
filed evidence by way of affidavit on 04.05.2013 and the matter was delayed
by the respondent on one pretext or the other. The matter was also referred
for settlement and on 02.04.2016, an MOU was prepared, as per which, the
arrears of maintenance of Rs.2,40,000/ were adjusted as the respondent
executed a Sale Deed of a plot of land in Aligarh in the name of petitioner
No.1. The petitioner along with her children started living with the
respondent, however, thereafter she was beaten up by the respondent and an
FIR under Sections 323/504/506 was registered. The same is reflected in the
order dated 23.08.2016 passed by the Principal Judge, Family Courts. On the
said date, the petitioner was directed to file evidence by way of affidavit as
well as list of witnesses and the matter was listed for PE on 07.02.2017. It
appears that the said directions to the petitioner to file affidavit by way of
evidence were passed inadvertently as the petitioner’s affidavit by way of
evidence already stood filed on 04.05.2013. On 17.11.2017, the Principal
Judge, Family Courts granted last opportunity to the petitioner to file her
evidence and eventually on the next date, i.e., on 13.03.2018, in absence of
the petitioner and her counsel, the petitioner’s evidence was closed. It is
relevant that on the said date, the petitioner’s mother was present and sought

CRL.REV.P. 812/2018 Page 2 of 6
an adjournment on the ground that the petitioner could not come on account
of exams of her children. Apparently, the petitioner’s application to recall
the order was also dismissed for want of any material on record in this
regard.

5. Learned counsel for the respondent, on the other hand, has supported
the impugned order and submitted that the petitioner has delayed the
proceedings before the Family Court for one reason or the other.

6. A fair trial is the hallmark of criminal procedure. It entails not only
the rights of the victim but also the interest of the accused and the society. It
is the duty of the criminal court to ensure that fair and proper opportunity is
granted to the accused for the just decision of the case. Adducing evidence
by the accused in support of his defence is a valuable right.

7. In Natasha Singh v. CBI reported as (2013) 5 SCC 741, while
referring to its earlier decisions in Mir Mohd. Omar v. State of W.B.
reported as (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India
reported as AIR 1991 SC 1346, Rajeswar Prasad Misra v. State of W.B.
reported as AIR 1965 SC 1887, Rajendra Prasad v. Narcotic Cell reported as
(1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh reported as
(2012) 7 SCC 56, T. Nagappa v. Y.R. Muralidhar reported as (2008) 5 SCC
633, the Supreme Court held as under:-

“8. Section 311 Cr.P.C. empowers the court to summon a
material witness, or to examine a person present at “any stage”
of “any enquiry”, or “trial”, or “any other proceedings” under
Cr.P.C., or to summon any person as a witness, or to recall and
re-examine any person who has already been examined if his
evidence appears to it, to be essential to the arrival of a just
decision of the case. Undoubtedly, Cr.P.C. has conferred a very
wide discretionary power upon the court in this respect, but such

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a discretion is to be exercised judiciously and not arbitrarily. The
power of the court in this context is very wide, and in exercise of
the same, it may summon any person as a witness at any stage of
the trial, or other proceedings. The court is competent to exercise
such power even suo motu if no such application has been filed
by either of the parties. However, the court must satisfy itself,
that it was in fact essential to examine such a witness, or to
recall him for further examination in order to arrive at a just
decision of the case.

xxx

15. The scope and object of the provision is to enable the court to
determine the truth and to render a just decision after
discovering all relevant facts and obtaining proper proof of such
facts, to arrive at a just decision of the case. Power must be
exercised judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may lead to
undesirable results. An application under Section 311 Cr.P.C.
must not be allowed only to fill up a lacuna in the case of the
prosecution, or of the defence, or to the disadvantage of the
accused, or to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be received as a
disguise for retrial, or to change the nature of the case against
either of the parties. Such a power must be exercised, provided
that the evidence that is likely to be tendered by a witness, is
germane to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The power conferred
under Section 311 Cr.P.C. must therefore, be invoked by the
court only in order to meet the ends of justice, for strong and
valid reasons, and the same must be exercised with great caution
and circumspection. The very use of words such as “any court”,
“at any stage”, or “or any enquiry, trial or other proceedings”,
“any person” and “any such person” clearly spells out that the
provisions of this section have been expressed in the widest
possible terms, and do not limit the discretion of the court in any
way. There is thus no escape if the fresh evidence to be obtained

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is essential to the just decision of the case. The determinative
factor should therefore be, whether the summoning/recalling of
the said witness is in fact, essential to the just decision of the
case.

16. Fair trial is the main object of criminal procedure, and it is
the duty of the court to ensure that such fairness is not hampered
or threatened in any manner. Fair trial entails the interests of the
accused, the victim and of the society, and therefore, fair trial
includes the grant of fair and proper opportunities to the person
concerned, and the same must be ensured as this is a
constitutional, as well as a human right. Thus, under no
circumstances can a person’s right to fair trial be jeopardised.
Adducing evidence in support of the defence is a valuable right.
Denial of such right would amount to the denial of a fair trial.
Thus, it is essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed, and the
court must be zealous in ensuring that there is no breach of the
same.”

8. Admittedly, the petitioner is a resident of Mathura and is looking after
her three children. The petitioner has been present before the Family Court
on all the occasions. The petitioner’s affidavit by way of evidence is already
on record since the year 2013. The matter was referred for settlement in
pursuance to which the petitioner joined the company of her husband but
later, on account of the alleged behaviour of the respondent, the petitioner
along with her children started living separately. The Family Court ought to
have granted one opportunity to lead her evidence as well as to cross-
examine the respondent witness. The impugned orders dated 13.03.2018 and
04.09.2018 are set aside and the present petition stands allowed. It is
however, made clear that the petitioner will not seek any adjournment and
shall file her list of witnesses, if any. The respondent shall be at liberty to

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cross-examine the petitioner and her witnesses. The petitioner shall also be
permitted to cross-examine the respondent witness.

9. The petition alongwith the pending application stands disposed of in
the above terms.

DASTI.

MANOJ KUMAR OHRI
(JUDGE)

FEBRUARY 11, 2020
na

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