Gulshan Kumari v. State Of Uttarakhand another

Case No.M-337 of 2023, Smt. Gulshan Kumari vs. Smt. Rekha Girdhar, whereby the application moved by the respondent no.2 under Section 311 Cr.P.C. has been allowed.

2. Brief facts of the case are that the applicant, a mother-in-law, filed a complaint under the Protection of Women from Domestic Violence Act, 2005, (for short “the Act, 2005”) against her daughter-in-law (Respondent No. 2), alleging severe and continuous acts of domestic violence. The applicant accuses the respondent of financial exploitation, including bearing all marriage expenses and providing gold worth Rs.3,00,000, which the respondent no.2 continues to retain. The respondent no.2 allegedly subjected the applicant to verbal abuse, 1 publicly insulted her, her family, and guests during post- wedding ceremonies, criticized her cooking, and made derogatory remarks. The respondent is further alleged to have threatened and abused the applicant's daughter and filed a false FIR (No. 420 of 2014) against the applicant and her family for serious offences, which was later expunged by the police. The respondent also physically assaulted the applicant and unlawfully entered into her residence, threatening her life with a knife, despite the fact that the applicant now lives alone after disowning her son and daughter-in-law. It is further stated in the complaint that respondent no.2 attempted to grab the applicant’s property and sent miscreants to forcibly take possession of her house, causing the applicant to live in constant fear for her safety and property. The applicant, who weighs approximately 120 kg and suffers from severe knee problems, requires significant assistance for mobility. With these averments, the complaint was filed.

3. Thereafter, learned Additional Chief Judicial Magistrate, Roorkee, order dated

12.10.2023, granted interim relief under Section 23 of the Act, 2005, directing respondent No.2 not to commit any act of domestic violence or assault. The respondent no.2 was further prohibited from entering the residence of the applicant and from coming within a radius of 100 meters of the applicant's residence. Subsequently, the applicant was cross-examined in detail by the counsel for respondent No.2 on 19.10.2023. Thereafter, on

12.12.2023, respondent No.2 filed an application under Section 311 of the Criminal Procedure Code, praying for the recall of PW1, i.e., the applicant, for further examination. In response, the applicant filed her 2 preliminary written objections on 13.12.2023. The learned trial court, vide order dated 10.01.2024, allowed the said application and directed the re-examination of the witness/applicant. Feeling aggrieved, applicant is before this Court.

4. Learned counsel for the applicant submits that the order dated 10.01.2024 is bad in law for the reason that the questions which respondent no.2 seeks to ask the witness/applicant were never supplied to the applicant. The questions were submitted to the court in a sealed envelope, and the same were never provided to the applicant/witness. Application under Section 311 Cr.P.C. has been moved to harass the applicant, a 72 years old lady who is suffering from various ailments and cannot move without helpers. He further submits that the purpose is to delay the proceeding of Misc. Criminal Case No.M-337 of 2023.

5. Per contra, the learned State Counsel submits that the trial court, after duly appreciating all the material available on record, has rightly passed the impugned order.

6. Respondent no.2 chose not to participate in these proceeding despite personal service.

7. Heard learned counsel for the parties and perused the record meticulously.

8. Section 311 CrPC undoubtedly vests wide discretion in the trial court to summon or recall any witness at any stage of inquiry, trial, or other proceedings, if it considers such evidence essential to the just decision of the case. However, the exercise of this power must not be arbitrary or in violation of procedural 3 fairness.

9. In the present case, it is not denied that the questions proposed by the respondent no.2 for further cross-examination were submitted in a sealed envelope, and the contents thereof were not disclosed to the applicant. This course of action clearly offends the principles of natural justice and fair play. A witness is entitled to know the nature and scope of the further questions being sought to be put, especially when she has already been cross-examined at length. The trial court ought to have at least ensured that the questions were made known to the applicant, or her counsel, and give an opportunity to raise objections, if any as to whether those questions have already been put to witness (the applicant) or not.

10. In aforesaid circumstances of the case, this Court is of the view that the present C482 application deserves to be allowed. Accordingly, the same is allowed. Order dated

10.01.2024 passed by learned Additional Chief Judicial Magistrate, Roorkee, District Hairdwar in Misc. Criminal Case No.M-337 of 2023, Smt. Gulshan Kumari vs. Smt. Rekha Girdhar is hereby quashed.

11. Respondent No.2 may file a fresh application under Section 311 Cr.P.C., containing the questions to be asked to the witness (applicant), within fifteen days from the date of receipt of this order. If such an application is filed within the stipulated time, the trial court shall decide the same, in accordance with law, as expeditiously as possible, but not later than one month from the date of production of the certified copy of this order.

12. Pending application, if any, stands disposed of 4 accordingly.

13. Stay order dated 16.01.2024 stands vacated. AK (Pankaj Purohit, J.) 31.07.2025 5