SINGH RAM Vs. KAMLA

JUDGEMENT

(1.) Heard.: In the proceedings under section 125, Code of Criminal Procedure, initiated by the respondent seeking maintenance from her husband - petitioner, an application under section f 311, Code of Criminal Procedure was made by the petitioner - husband for summoning one Doctor S.K. Sharma Eye Specialist in evidence. Such application was allowed by the learned Magistrate on 21st of March, 2001. Necessary steps were taken by the petitioner for summoning of said witness. On 31.7.2001 when the case was fixed for evidence of the petitioner, the witness Dr. S.K. Sharma was not present. The reason for his non -presence was that though necessary steps for summoning the said witness were taken by the petitioner, the Ahalmad of the learned Magistrate had failed to issue necessary process to the said witness. The learned Magistrate, instead of granting an opportunity for examination of said witness and by ensuring his presence by issuing necessary summons to him, proceeded to close the case of the petitioner by observing that examination of Dr. S.K. Sharma was not material. In other words, the learned Magistrate had proceeded to review its earlier order dated 21.3.2001 which under the law was not permissible since the Magistrate has no power of review.

(2.) Aggrieved by the order dated 31.7.2001, the petitioner preferred a revision petition before the learned Additional Sessions Judge, who vide the impugned order dated 26.7.2002 has dismissed the same by observing that the examination of the witness was not material in view of the statement of the petitioner himself with regard to his bad eye sight.

(3.) At the very out -set, it may be stated that the impugned order of learned Magistrate as well as the learned Additional Sessions Judge are liable to be set aside. The learned Additional Sessions Judge by upholding the order has in fact put his stamp on the power of review of the Magistrate which was not legally permissible. Once the learned Magistrate has exercised his discretion to summon the witness under section 311, Code of Criminal Procedure, he could not have subsequently re -examined the matter and come to a conclusion that the examination of a witness was not necessary. In the earlier order permitting the examination of such witness the learned Magistrate had recorded his opinion that the examination of the witness Dr S.K. Sharma was material for the just determination of the case especially the quantum of maintenance to be awarded to the respondent. C.M.P. No. 396 of 2002. Interim order dated 3.10.2002 is vacated and the application is dismissed as having become infractuous in view of the orders passed in the main matter. The parties through their counsel are directed to appear before the learned Magistrate on 16th December, 2002. A copy of this order be circulated to the learned Magistrate forthwith so as to reach well before the date fixed.