M.Sripriya v. P.V.Kamakshidsan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.08.2009CORAM:THE HONOURABLE MR.JUSTICE R.REGUPATHICrl.O.P.Nos.18107 and 18108 of 2009 & M.P.Nos.1 & 1 of 2009M.Sripriya ... Petitioner in both Crl.O.PsVersusP.V.Kamakshidsan ... Respondent in both Crl.O.Ps Prayer in Crl.O.P.Nos.18107 of 2009: Petition filed under Section482 Cr.P.C seeking for a direction to set aside the order of thelearned Magistrate in Crl.M.P.No.3149/2009 dated 21st August 2009 anddirect the learned Magistrate of XXIII Metropolitan Magistrate Court,Saidapet to recall and reexamine the petitioner as a witness.Prayer in Crl.O.P.Nos.18108 of 2009: Petition filed under Section482 Cr.P.C seeking for a direction to set aside the order passed bythe XXIII Metropolitan Magistrate, Saidapet, Chennai inCrl.M.P.No.3023/2009 in C.C.No.3457/2008 dated 21st August 2009 andto direct the learned Magistrate to call for Form-16 pertaining tothe year 2007-08 and 2008-09 issued by the HCL Technologies Ltd. Tothe respondent and filed before the Income Tax Department.For Petitioner : Mr.RamasubramanianFor respondent : Mr.K.Chandrasekar COMMON ORDER The petitioner herein lodged a complaint under the provisionsof the Protection of Women From Domestic Violence Act 2005 asagainst her husband and ultimately trial was taken up inC.C.No.3457 of 2005 by the XXIII Metropolitan Magistrate Court,Saidapet, Chennai. The petitioner and the only respondent, namely,the husband of the petitioner have been examined in chief and crossand the case was posted for arguments and at that stage, twopetitions were filed, one under section 311 Cr.P.C., and anotherunder section 91 Cr.P.C. to recall the witnesses and to mark certaindocuments. The respondent/husband objected to the same on the groundthat the purpose behind filing of those petitions was to prolongthe proceedings and by the orders impugned, the plea of thepetitioner came to be dismissed and, aggrieved thereby, the presentpetitions have been filed before this court. https://hcservices.ecourts.gov.in/hcservices/

2. The learned counsel for the petitioner/complainant pointsout that the petitioner is mother of two children, aged about 14and 9 respectively and they are in her custody and that theproceedings have been initiated by her on 14.3.2008. He submitsthat the respondent produced the pay slips issued by hisemployer upto July 2009 and disputing the same, the petitioner hasproduced Form 16 issued by the employer to substantiate her claimregarding actual income derived during 2006-07 and to establish thefact that subsequently the respondent/husband drew more salaryduring 2007-08 and 2008-09. Initially, Form 16 could not beproduced by the petitioner because there was refusal by the husband;therefore, production of the same through the employer had becomenecessary. The respondent produced a letter alleged to have beenwritten by the father of the petitioner to substantiate the goodconduct of the respondent. Under such circumstances, the petitionerwanted to produce certain diary notings of her father to disprovethe claim of the husband. The learned Magistrate, without properlyconsidering the plea for recalling of witnesses and marking ofcertain relevant documents, erroneously passed the orders impugned.According to the learned counsel, unless those documents are allowedto be marked and the respondent is recalled for cross examination,great prejudice will be caused and the same may not be rectified at alater stage. 3. Learned counsel for the petitioner relied on a case reportedin 1999 SCC (Cri) 1062 (Rajedra Prasad v. The Narcotic Cell throughits Officer in charge, Delhi), wherein it is held as follows: "8.Lacna in the prosecution must be understood as theinherent weakness or a latent wedge in the matrix of theprosecution case. The advantage of it should normally go tothe accused in the trial of the case, but an over sight inthe management of the prosecution cannot be treated asirreparable lacuna. No party in a trial can be foreclosedfrom correcting errors. If proper evidence was not adducedor a relevant material was not brought on record due to anyinadvertence, the court should be magnanimous in permittingsuch mistakes to be rectified. After all, function of thecriminal court is administration of criminal justice and notto count errors committed by the parties or to find out anddeclare who among the parties performed better." According to him, granting permission to produce Form 16, which ismaintained by the employer, will not cause any further delay and theorder impugned may be set aside. 4. Per contra, learned counsel for the respondent/husbandsubmits that sufficient time and opportunity have been givenpending trial of the case and though the petitioner marked pay slipsof the husband and letters written by her father, steps were nottaken by the petitioner at the relevant time and she allowed theproceedings to be closed and having slept over till the stage, whenthe case is posted for argument, only with a view to protract theproceedings and to fill up the lacuna, she filed the two petitionsfor recalling of witnesses and many of documents. The litigationstarted on 14.03.2008 and pay slips possessed by the respondentupto July 2009 have been furnished under such circumstances, the https://hcservices.ecourts.gov.in/hcservices/ documents said to have been procured from the Employer, may not benecessary. Even otherwise, with the available materials, theassessment of the income for the year 2008 can be arrived at andthe claim can be examained and under such circumstances, necessityto mark some more documents as claimed does not arise. At the timewhen the letter said to have been written by the father of thepetitioner was marked by the respondent, the petitioner could havevery well produced the diary notings and cross examined thewitnesses or examined herself in that regard. Moreover if thepetitioner was in fact aggrieved, she would have preferred an appealagainst the orders impugned under section 29 of the Act instead ofdirectly preferring a petition under section 482 Cr.P.C., to theHigh Court, therefore, both the petitions are not maintainable.Learned counsel also points out that on an earlier occasion, thiscourt has passed a specific direction to complete the trial within aperiod of two months, as per order dated 17.3.2009, in a petitionpreferred by the respondent and it is only the petitioner who isdragging on the proceedings.5. Learned counsel for the respondent relied on a casereported in 2008(1) SCC 474 (Hamida v. Rashid @ Rasheed and others)wherein, it has been held as follows:"7.It is well-established principle that inherentpower conferred on the High courts under Section 482 CrPchas to be exercised sparingly with circumspection and inrare cases and that too to correct patent illegalities orwhen som miscarriage of justice is done. The content andscope of power under section 482 CrPC were examined inconsiderable detail in Madur Limaya v. State of Maharashtraand it was held as under:The following principles may be stated in relation tothe exercise of the inherent power of the High Court.(1) that the power is not to be resorted to if thereis a specific provision in the code for the redress of thegrievance of the aggrieved party;(2) that it should be exercised very sparingly toprevent abuse of process of any court or otherwise tosecure the ends of justice;(3) that it should not be exercised as against theexpress bar of law engrafted in any other provision of theCode. 6. Heard the submissions made on either side and perusedthe materials available on record.7. The applications have been preferred by the wife underthe provisions of the Protection of Women From Domestic ViolenceAct 2005 to get relief for herself as well as for her minor children.Admittedly, the children are living with the petitioner and aninterim order of maintenance was passed by the learned Magistrateawarding Rs.30,000/- per month and the same was reduced toRs.20,000/-. It has also been observed by the High Court that inview of the facts and circumstances of the case, the petitioner isentitled to 50% of the salary of the respondent/husband. When the https://hcservices.ecourts.gov.in/hcservices/ proceedings were pending to substantiate the salary drawn, materialswere produced and under such circumstances, Form-16 for 2006-07 hasbeen marked. To controvert this, pay slips have been marked on theside of the respondent/husband. When Form-16 for 2006-07 isavailable with the employer and when the respondent is relying onthe pay slips for the subsequent period namely, 2007-08 and 2008-09,I am of the considered opinion that there is nothing wrong insecuring Form 16 from the employer for the subsequent two years.Though the applications were initiated on 14.3.2008, the learnedMagistrate may adjudicate the dispute and arrive at a quantum basedon the income of the husband as on the date of adjudication in oneway or other. 8. Learned counsel for the respondent contended that theremay be fluctuations in the income for subsequent period and claimfor enhancement in proportionate to the hike may have to be agitatedonly in subsequent application and not in the present one.Further, the respondent has already marked documents to prove thegood conduct of the respondent, by producing the letter written bythe father of the petitioner; while so, the petitioner/wife has everyright to repudiate the same by producing contrary materials andthat is the reason why she is seeking for marking of diary notingsmade by the father. 9. On a careful perusal of the orders impugned, I find thatboth the petitions were dismissed since a direction has been issuedby this court to complete the trial within a period of two months.Admittedly, the period fixed by the High Court had already expired.Under such circumstances, the production of document sought for bythe petitioner and recalling of the respondent for cross examinationmay not cause prejudice. In that view of the matter, the orderspassed by the learned Magistrate are set aside with adirection to call for the document mentioned in the petitions andalso to recall the respondent for cross examination soon afterreceipt of those documents. Consequently, connected miscellaneouspetitions are closed. rjSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe XXIII Metropolitan Magistrate Court, Saidapet, Chennai.+ 2 ccs to Mr. Ram & Ram, Advocate SR No.43343, 43342+ 2 ccs to M/s.K.Chandrasekaran, Advocate SR No.43608, 43609CKN(CO)SR/18.9.2009Crl.O.P.Nos.18107 and 18108 of 2009