Shri. Irshad Khan S/O. Akil Ahmad ... vs Afsha Irshad Khan
2017 Latest Caselaw 8705 Bom

WP  1004/17                                         1                              Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.

                CRIMINAL WRIT PETITION NO. 1004/2017

Shri Irshad Khan s/o Akil Ahmad Khan,
Aged Major, Occu.: Service,
R/o Plot No.152, Noori Colony, Noori Masjid,
Nara Road, Nagpur.                                                              PETITIONER


                                   .....VERSUS.....
Afsha Irshad Khan,
Aged Major 32 years, Occu.: Business,
R/o Nahar Road, M.S.E.B. Colony,
Rajeev Gandhi Chowk, Bhandara,
District Bhandara.                                                           RESPONDENT

Mr. Amit Khare, counsel for the petitioner.
Mr. Shashibhushan B. Wahane, counsel for the respondent.


                                        CORAM : REVATI MOHITE DERE, J.

                                         DATE        :          15  TH     NOVEMBER,   2017.
ORAL JUDGMENT 

RULE. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal, at the stage of admission.

2. By this petition, the petitioner seeks quashing and

setting aside of the impugned order dated 17.08.2017 passed by the

learned Judicial Magistrate First Class, Bhandara by which the

petitioner's evidence was closed, as well as the order dated 10.10.2017,

by which the learned Magistrate rejected the application (Exhibit 106)

preferred by the petitioner for setting aside the 'no cross' order,

dated 17.08.2017.

WP 1004/17 2 Judgment

3. Mr.Amit Khare, learned counsel for the petitioner submits

that the learned Magistrate in the facts, was not justified in closing the

evidence of the petitioner, inasmuch as, the service report was yet to be

filed on 17.08.2017. He submits that a perusal of the Roznama would

show that the petitioner or his advocate were diligently attending and

participating in the proceedings and that there was no intention to delay

the trial. He submits that in the interest of justice, the impugned orders

dated 17.08.2017 and 10.10.2017 be quashed and set aside and the

petitioner be permitted to lead evidence.

4. Mr.S.B. Wahane, learned counsel for the respondent opposed

the petition. He submitted that the petitioner is deliberately trying to

delay the proceedings which have been pending since 2014. He

submitted that infact, this Court and the learned Magistrate were

constrained to impose costs once on the petitioner.

5. Perused the papers. On 21.02.2014, the respondent-wife filed

a complaint under Section 12 of the Protection of Women from Domestic

Violence Act, in the Court of the learned Judicial Magistrate First Class,

Bhandara. The said case was registered as Miscellaneous Criminal

Application No.01/2014. It appears that sometime in 2015-16, the

respondent-wife filed her evidence on affidavit and she was cross-

examined by the advocate for the petitioner-husband on several dates. A

WP 1004/17 3 Judgment

perusal of the Roznama shows that on 17.06.2016, 08.07.2016,

22.07.2016, 04.10.2016 and 17.03.2017, the respondent-Wife was cross-

examined and the cross-examination of the respondent-wife was over on

17.03.2017. During the said period, i.e. from 05.05.2017 to 17.03.2017,

on almost all dates, the petitioner or his advocate were present. Infact,

on a few dates, as the respondent-wife was not present, the case had to be

adjourned for her cross-examination. Also, on some dates, as the

Presiding Officer was on leave, the case was required to be adjourned.

The roznama also shows that after 17.03.2017, the matter was adjourned

to 17.04.2017 on which date, an application was filed by the respondent-

wife calling for the salary slip of the petitioner. On 28.04.2017, a pursis

was filed by the respondent-wife closing her evidence and the matter was

adjourned to 05.05.2017. On 05.05.2017, as the petitioner and his

advocate were absent, the petitioner's evidence was ordered to be

closed and the matter was posted for arguments on 09.06.2017. On

04.07.2017, the petitioner filed an application for setting aside the 'no

cross' order which was allowed subject to costs of Rs.2,000/- and

thereafter the matter was adjourned to 25.07.2017. A perusal of the

Roznama shows that on 04.07.2017, an application was filed by the

petitioner giving details of the witnesses he intended to examine and the

matter was adjourned to 25.07.2017. On 25.07.2017, the petitioner's

advocate was present, however the matter was adjourned to 29.07.2017.

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On 29.07.2017, the learned Magistrate was pleased to issue summons to

the petitioner's witnesses. It appears that the process fee was paid and

hamdast was taken and the matter was adjourned to 17.08.2017. It

appears that the learned Magistrate saw the pursis filed by the petitioner,

the list of documents as well as the receipts filed. The Roznama shows

that as the petitioner and his advocate were not present, the petitioner's

evidence was closed and the matter was adjourned to 05.09.2017. On

05.09.2017, the petitioner preferred an application (Exhibit 106) for

setting aside the order dated 17.08.2017. Learned counsel for the

petitioner submitted that on the said date, i.e. on 05.09.2017, the

petitioner's witnesses were present, however the matter was adjourned to

26.09.2017. On 26.09.2017, the matter was adjourned for passing

orders on Exhibit 106, to 10.10.2017. On 10.10.2017, the learned

Magistrate was pleased to reject the application seeking setting aside of

the order dated 17.08.2017.

6. A perusal of the Roznama shows that the petitioner or his

advocate were present on almost all dates. Learned counsel for the

petitioner states that the petitioner would ensure that the petitioner's

witnesses remain present before the trial Court on the next date. In the

facts, in the interest of justice, the petitioner ought to be given an

opportunity to lead evidence and examine his witnesses.

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7. Considering the aforesaid, the writ petition is alllowed and

the impugned orders dated 17.08.2017 passed by the learned Judicial

Magistrate First Class, Bhandara as well as the order dated 10.10.2017

passed by the same Court, below Exhibit 106, are quashed and set aside,

subject to the petitioner paying costs of Rs.5,000/- to the respondent-

wife. The said costs be deposited directly in the account of the

respondent-wife within one week from today. The trial Court shall fix the

matter in the first week of December-2017. The petitioner to ensure that

his witnesses remain present on the said date/any date thereafter, as may

be given by the Court. The petitioner to cooperate in the conduct of the

trial. Since the proceedings are of the year 2014, the learned Judge shall

decide the said case as expeditiously as possible. The parties are also at

liberty to explore the possibility of an amicable settlement. Rule is made

absolute on the aforesaid terms.

JUDGE

APTE