Lakshmanan v. Sangeetha

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.10.2009CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.Nos.576 of 2009 Lakshmanan .. Petitioner/RespondentversusSangeetha .. Respondent/PetitionerPetition filed under Section 397 and 401 of Cr.P.C., againstthe order made in M.C.No.11 of 2008, on the file of the JudicialMagistrate-I, Panruti dated 08.06.2009.For petitioner : Mr.V.AyyaduraiFor Respondent : Mr.R.GururajORDERThe revision petitioner herein is the respondent in proceedingsin M.C.No.11 of 2008, on the file of the Judicial Magistrate-I,Panruti, and the respondent herein filed an application before thelearned Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking certain reliefs.

In the proceedings, the respondent herein to examine herselfas P.W.1 by way of giving evidence, filed a proof of affidavit. Atthat stage, the petitioner herein filed a memo of objection statingthat there is no provision either in the Criminal Procedure Code orin the Indian Evidence Act to file an affidavit as a substitute forthe oral evidence. The objection memo was dismissed by the learnedJudicial Magistrate-I, Panruti. Aggrieved by the said order, thepetitioner herein has preferred this criminal revision petition.

The learned counsel appearing for the petitioner submittedthat as per Section 60 of the Indian Evidence Act, the oral evidencemust be direct and there is no specific provision like the NegotiableInstruments Act to let in evidence by way of filing proof ofaffidavit. The learned counsel for the petitioner further submittedthat the evidence includes Chief examination and Cross examination. The Chief examination should be by way of oral evidence and, if anydeviation from the said procedure, a prejudice would be caused to theparties.

Per contra, the learned counsel appearing for the respondentsubmitted that the remedy is provided under the Protection of Womenfrom Domestic Violence Act, is only a civil remedy, but at the sametime, the Act provides for speedy disposal and as per Section 12(5)of the Protection of Women from Domestic Violence Act, theapplication should be disposed of within a period of sixty days from https://hcservices.ecourts.gov.in/hcservices/ the date of its first hearing.

The learned counsel for the respondent further submitted thatas per Section 28 of the Protection of Women from Domestic ViolenceAct, 2005, the normal procedure to be adopted is governed by theprovisions of Code of Criminal Procedure, but under Section 28(2) ofthe Act, the Court can lay down its own procedure for disposal of anapplication under Section 12 or under sub-section (2) Section 23 ofthe Act. The right to give evidence on affidavit had been introducedeven in the Code of Civil Procedure in the year 2002 itself.

This Court considered the submissions made by both partiesand perused the records. The procedure to be adopted as per Section28 of the said Act is as follows: "28. Procedure: (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22and 23 and offences under Section 31 shall be governed bythe provisions of the Code of Criminal Procedure, 1973 (2of 1974).(2) Nothing in sub-section (1) shall prevent the Courtfrom laying down its own procedure for disposal of anapplication under Section 12 or under sub-section (2) of Section 23."This clause provides that proceedings under theproposed legislation relating to application and orders forreliefs and offence of breach of protection order orinterim protection order by the respondent shall begoverned by the provisions of the Code of CriminalProcedure, 1973. Sub-clause (2) envisages that the Courtmay lay down its own procedure for disposal of applicationsfor any relief or for ex parte order. " 7. It is true that as per Section 60 of the Indian Evidence Act, the oral evidence has to be let in directly in all cases. The rightto give evidence on affidavit was introduced in the Code of CivilProcedure also and Order XVIII Rule 4 of the Code reads as follows: "[4. Recording of evidence(1) In every case, the examination-in-chief of a witnessshall be on affidavit and copies thereof shall besupplied to the opposite party by the party who calls himfor evidence. Provided that where documents are filed and the partiesrely upon the documents, the proof and admissibility ofsuch documents which are filed along with affidavit shallbe subject to the orders of the Court. (2) The evidence (cross-examination and re-examination)of the witness in attendance, whose evidence(examination-in-chief) by affidavit has been furnished tothe Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing acommission under this sub-rule, consider taking intoaccount such relevant factors as it thinks fit. " https://hcservices.ecourts.gov.in/hcservices/

An amendment was also brought with regard to the proceduresin the Negotiable Instruments Act under Section 145 of the Act whichis as follows: "145. Evidence on affidavit:- (1) Notwithstandinganything contained in the Code of Criminal Procedure, 1973(2 of 1974), the evidence of the complainant may be givenby him on affidavit and may, subject to all justexceptions be read in evidence in any enquiry, trial orother proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, onthe application of the prosecution or the accused, summonand examine any person giving evidence on affidavit as tothe facts contained therein. "

The Division Bench of this Honourable High Court in thedecision of P.Janakumar vs. G.Pandiyaraj reported in (2009(1) CTC763), while dealing with the provision under Section 145 of Negotiable Instruments Act has observed as follows: "7. Evidence on affidavit is not unknown to criminaljurisprudence and similar provisions are found in Section295 and Section 296 of the Code of Criminal Procedure. Therefore, the evidence of witnesses is, as a rule, recorded in open court in the presence of the presidingofficer, as seen from Section 274, Section 275 and Section276 of the Code. In fact, Section 273 stipulates thatexcept as otherwise expressly provided, all evidence takenin the course of the trial or other proceeding shall betaken in the presence of the accused, or when his personalattendance is dispensed with, in the presence of hispleader. Therefore, the rule is that evidence shall berecorded in open court.

Though like Negotiable Instruments Act, in the Protection of Women from Domestic Violence Act, 2005, it is not specifically statedthat the evidence may be given by the witness on affidavit, Section28(2) provides for the deviation from the normal procedures ascontemplated under the Code of Criminal Procedure, 1973.