SMT. NEELAM Vs. STATE OF RAJASTHAN & ANR.

JUDGEMENT

(1.) By the instant criminal revision petition under Sec. 397 read with Sec. 401 Cr.RC., the petitioner has challenged the order dated 26.5.2003 passed by the Additional Sessions Judge No. 2, Bikaner (for short, "the revisional court" hereinafter), whereby the revisional court allowed the revision petition filed by respondent No. 2 Rajesh Kumar and set-aside the order dated 18.2.2003 passed by the Additional Chief Judicial Magistrate No. 1, Bikaner (for short, "the trial court" hereinafter) in Criminal Case No. 161/99, whereby the trial court allowed the application filed by the petitioner under Sec. 125 Cr.RC. and awarded maintenance @ Rs. 1200.00 per month in favour of the petitioner and against the respondent No. 2. Apart form the amount of Rs. 1200.00 per month as maintenance, the trial court also directed the respondent No. 2 to pay a sum of Rs. 150.00 per month towards medical expenses and Rs. 100.00 per month for other expenses. The interim maintenance awarded to the petitioner was made subject to adjustment against the maintenance finally awarded by the trial court. Aggrieved by the order dated 18.2.2003 passed by the trial court, the respondent No. 2 filed criminal revision petition No. 8/2003 before the revisional court. The order of the trial court was mainly challenged on the ground of non-compliance of the provision of Sec. 126(2) Cr.RC. alleging therein that the examination-in-chief of AW 1 Smt. Neelam and AW 2 Narain Das were recorded in the absence of respondent No. 2 and his counsel. On this ground, the revisional court set-aside the order of the trial court and remanded the matter to the trial court to decide it afresh in the light of the provision of Sec. 126(2) Cr.RC.

(2.) I have heard learned counsel for the petitioner and also gone through the record of the trial court. This case has a chequered history. The petitioner filed an application under Sec. 125 Cr.RC. before the trial court on 24.6.99. Notice of the application was served on respondent No. 2 who filed the reply on 1.12.99. Respondent No. 2 was represented through his counsel. On 9.8.2001 the petitioner along with her counsel and witness Narain Das were present in the Court. Respondent No. 2 was not present in the court and his counsel, though present in the court premises, did not appear in the case. On several times, call was made to the respondent No. 2 and his counsel but neither the respondent No. 2 nor his counsel put in appearance before the court. Counsel for the petitioner approached to the counsel representing respondent No. 2, viz. Mr. Damodar Sharma, Advocate, in the court premises and informed him that the petitioner and her witness are present and their statement are to be recorded so he may appear on behalf of respondent No. 2 and cross-examine the witness. Despite this, counsel for respondent No. 2 did not appear. Ex-parte proceeding was drawn against respondent No. 2 and thereafter the statement of AW 1 Smt. Neelam and her witness AW2 Narian Das were recorded and the petitioner closed her evidence. By the order dated 14.8.2001, the trial court allowed the application filed by the petitioner and awarded maintenance to her. That order came to be challenged by the respondent No. 2 by way of filing criminal revision petition before the Additional Sessions Judge, Bikaner being Criminal Revision Petition No. 204/2001. By the order dated 27.7.2002, the revision petition filed against the order of the trial court dated 14.8.2001 was allowed, the order of the trial court was set-aside and the matter was remanded to the trial court with a direction to decide it afresh after affording equal opportunity of hearing to both the parties and the parties were directed to appear before the trial court on 12.8.2002, It was further directed that the revisionist', i.e. respondent No. 2 herein, shall keep himself and his witnesses present peremptorily and was also directed to cross-examine the witnesses produced by the petitioner. It was also made clear that for the purpose of cross-examination, no further opportunity would be given. The respondent No. 2 was directed to produce his entire evidence on the date fixed and the matter would be adjourned only in the exceptional circumstances. On 12.8.2001, the petitioner and her witness Narain Das were present before the trial court, as directed by the learned Sessions Judge while deciding the revision petition. AW 1 Smt. Neelam, the petitioner, was cross-examined by the counsel appearing for respondent No. 2 on 12.8.2002. AW 2 Narain Das was also present on that day; however, his cross-examination could not be undertaken due to paucity of time. From the order sheet of the trial court, it appears that the cross-examination of AW 1 Smt. Neelam was completed at about 4.30 PM and the matter was adjourned to 5.9.2002. On 5.9.2002, AW 2 Narain Das appeared for cross-examination and he was cross-examined by the counsel appearing for respondent No. 2. Thus, the order of the revisional court dated 27.7.2002 had been fully complied with by the trial court.

(3.) While remanding the matter, the revisional court, vide order dated 27.7.2002, make it clear that the witnesses produced by the complainant would appear only for cross-examination and, therefore, there was no necessary for them to make a fresh statement in examination-in-chief in the presence of respondent No. 2. That order was passed on the revision petition filed by the respondent No. 2 at his request and, therefore, it does not lay in the mouth of the respondent No. 2 to thereafter turn out and say that the examination-in-chief of AW 1 Smt. Neelam and AW 2 Narain Das were not recorded in his or his counsel's presence. This aspect of the matter has been totally ignored by the revisional court while setting aside the order passed by the trial court.