PAWAN KUMAR JAIN Vs. SUNITA JAIN

JUDGEMENT

(1.) 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.

(2.) 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 (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.

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