PRABHUBHAI RANCHHODHBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present application presents some peculiar features. The petitioner husband was proceeded against under section 125 of the Criminal Procedure Code by way of maintenance proceedings. That application was numbered as Maintenance Application No. 33/84. The petitioner is his lawfully wedded wife. During the course of the trial the respondent's deposition was recorded and it is the allegation of the petitioner to at the learned Magistrate started misbehaving in such a way that the conduct of the learned Magistrate engendered in the mind of the petitioner an apprehension that he might not get justice at the hands of the said Magistrate and the matter was to be heard on 6 -2 -85. On that day, an oral request was made that on the petitioner has already moved the learned Sessions Judge for transferring the case from one Court to another the matter should be adjourned. The matter was adjourned to 7 -2 -85. It also transpires that prior to 6 -2 -85 some application for transferring the case was forwarded to the learned Sessions Judge through post. As it was not in proper from and properly presented the said application was taken cognizance of On 7 -2 -85 also, the matter was sought to be adjourned and it was adjourned to 22nd February, 1985. Even than a proper application was not made fir transferring the case. That came to be filed only on 18 -3 -1985. Ultimately the transfer application was heard by the learned Sessions Judge and the learned Sessions Judge very rightly by a very well reasoned order rejected the same. The petitioner being aggrieved by the same has approached this Court by way of this Criminal Application. The prayers that the petitioner has made in this application are narrated in para 16 of the petition. in para (B) of the main prayer is that case No. 33/84 should be transferred and the order of the learned Sessions Judge passed in Criminal Misc. Application No. 18/85 be reversed. While arguing the matter Mr. Trivedi the learned Advocate appearing for the petitioner also made a grievance that the learned Magistrate was not justified in asking the petitioner to enter the Box. However, there does not appear to any prayer made in the present application for reversing the said order of the learned Magistrate. The petitioner had contended that the respondent was not his lawfully wedded wife. The proceedings under section 125 of the Criminal Procedure Code are quasi civil proceedings. Under the circumstances, the standard of proof and the burden of proof which is required in these proceedings would largely by governed by the procedure of proof usually adopted in civil proceedings. If the contention of the petitioner was that the respondent was not his lawfully wedded wife and if the basis for the petition under section 125 of the Criminal Procedure Code was the factum of marriage between the petitioner and the respondent then, the learned Magistrate was perfectly justified in ordering the same. However, as I am not called upon to determine that matter, I am not fore -closing the right of the petitioner to challenge the said order in a separate proceeding if he is so advised.

(2.) THE main grievance of the petitioner was that the learned Magistrate has closed the cross -examination of the respondent. It appears that the petitioner all throughout had adopted dilatory practice for procratinating the proceedings and if any evidence was needed for this than, it can he found from the simple fact that though from 6 -2 -85, the matter was sought to be adjourned on the ground that transfer application was made, that application for transfer in the case came to be made only on 18th March, 1985. The present petition also seems to be forming part of a larger technique of delaying court proceedings. The matter bearing No. 33/84 which was a maintenance application preferred by the wife has so far been successfully stalled. These matters are required to be expeditiously disposed of and if the learned Magistrate had attempted to do so, I do not think he has done anything wrong. On the contrary he was perfectly justified the doing so.

(3.) THE next grievance of the petitioner is that the learned Magistrate asked him not to bring any body to the Court. However, I have not called for the remarks of the learned Magistrate. I personally feel that the learned Magistrate might or might not have done it. But even if he has done it, the learned Magistrate is directed not to be that harsh and if the petitioner wants to be accompanied by someone to the Court, he would be permitted to do so. I am confident that the learned Magistrate will definitely permit a little liberty to the petitioner provided of course the petitioner and his acquaintance who accompanied him do not give any cause for concern to the Court or to the other side.