RAM CHANDRA Vs. SMT. IGYARSI DEVI & ANR.

JUDGEMENT

(1.) The instant petition under Sec. 482 Code Criminal Procedure has been preferred against the revisional order dated 16.3.2002 passed by the learned Sessions Judge, Bikaner in criminal revisional No.46/2002 whereby the revision has been dismissed and the order dated 29.1.2002 passed by the learned Judicial Magistrate 1st Class No.3, Bikaner in criminal misc case No. 109/2001 has been confirmed.

(2.) The relevant facts giving rise to this petition are that non-petitioner No. 1 Smt. 1 gyarsi Devi, the wife, filed a petition under Sec. 125 Cr. P.C. against petitioner Ram Chander, the husband, for grant of maintenance to her and to her minor daughter Miss Saroj. She appeared in the court on 29.1.2002 for recording of her statement but neither the petitioner nor his learned counsel appeared in the court despite calling the case for number of times and waiting for them upto 4.00 p.m. Learned Judicial Magistrate then proceeded to record her statement in ex-parte, at which stage the junior counsel filed an application for adjournment on the ground that senior counsel in the case was busy in other court arguing the matter, but the learned Magistrate declined the request for adjournment and completed her statement in ex-parte. The petitioner challenged the order before the learned court below by way of revision which was also disallowed vide impugned order. Hence, this petition.

(3.) It has been contended by the learned counsel for the petitioner that subsection (2) of Sec. 126 Code Criminal Procedure provides that the evidence in such proceedings under Sec. 125 Code Criminal Procedure shall be taken in the presence of a person against whom an order for demand of maintenance is proposed to be made or if his personal attendance is dispensed with, in the presence of his pleader. He has also submitted that on 29.1.2002 the learned senior counsel for the petitioner could not appear in the court for cross-examination of the witnesses as he was busy in arguing a case before another court and proper application for adjournment was also made on that ground which was unjustifiably refused. His contention is that the rules of procedure are hand maid of justice and a party ought not to be penalised for the default of his counsel. He has submitted that one last opportunity may be given to the petitioner to cross examine the witness Smt. 1 gyarsi Devi on payment of expenses for her appearance and cost. He has submitted that the petitioner has no intention to delay the matter in any way and the date may be fixed for the purpose by this Court itself for the cross examination of the aforesaid witness.