Bombay High Court
Sunita Sanjay Kalwar vs The State Of Maharashtra And Anr on 23 September, 2022
Bench: Prakash Deu Naik
24-WP-1307-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1307 OF 2021
Sunita Sanjay Kalwar ...Petitioner
Versus
The State Of Maharashtra And Anr. ...Respondents
....
Ms. Sunita S. Kalwar, Petitioner in person, present.
Mr. Samyak K. Gimekar, Advocate for Respondent No.2.
Mr. S. R. Agarkar, APP for the Respondent - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 23rd SEPTEMBER, 2022.
PER COURT:
1. The petitioner has initiated the proceedings under the
Protection of Women from Domestic Violence Act (hereinafter
referred to as 'DV Act') against respondent No.2 which are pending
before the Court of the learned Additional Chief Metropolitan
Magistrate, at Ballard Pier, Mumbai and numbered as
1737/SS/2013. The evidence of the petitioner/complainant was
adduced. She was cross examined by the respondent. Thereafter,
both the sides filed pursis for closing of evidence. Pursuant to that,
application was preferred by Respondent No.2 for placing on
record documents which application has been allowed by the
learned Magistrate vide order dated 14.11.2019. The petitioner
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date:
2022.09.27
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+0530
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has challenged that order before the Court of Sessions and the
appeal preferred by the petitioner was dismissed by the Sessions
Court vide order dated 22.01.2021.
2. The petitioner, who appeared in person submits that the
order passed by the Courts below are contrary to law and deserves
to be set aside. The evidence of the petitioner was adduced and
thereafter the petitioner had been cross examined. Pursis were
filed by the petitioner as well as respondent No.2 for closing
evidence. The Respondent No.2 filed pursis of closing evidence on
12.02.2019. The application for taking the documents on record
was preferred on 19.07.2019. The application was vague. It was
not explained as to why the documents are required to be taken on
record. The learned Magistrate without assigning any legal
reasons, allowed the application by imposing cost of Rs.1,000/-
upon the respondent. After closure of evidence there was no
reason for the Court to take compilation of documents produced by
the Respondent No.2 on record. The learned Sessions Judge has
confirmed the order of learned Magistrate without assigning any
cogent reasons. The order indicating that the learned Magistrate
has passed the order considering the aspects of the matter by
imposing cost. The respondent is not trying to delay the matter. It
is submitted that after closing evidence, the case was listed for
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arguments, which is evident from the rojnama of the Court.
However at that stage the impugned application was preferred by
the Respondent No.2 which has been erroneously allowed by the
Courts below. Reliance is placed on the decision of the Hon'ble
Supreme Court in the case of M/s. Bagai Construction Thr. Its
Proprietor Mr. Lalit Bagai V/s. M/s. Gupta Building Material Store
delivered in SLP(C) No.35268 of 2011, another decision of the
Hon'ble Supreme Court in the case of K.K. Velusamy V/s. N.
Palanisamy delivered in Civil Appeal Nos.2795-2796 of 2011 and
decision of this Court in Criminal Application No.19/2014 in the
case of Dr. Kishor S/o Uttamrao Hantodkar V/s Appropriate
Authority under Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 2003 and Anr.
3. Learned counsel for Respondent No.2 submitted that, there
is no reason to disturb the orders passed by the learned Magistrate
and learned Sessions Judge. The documents which were sought to
be produced are known to the petitioner. There is reference of
these judgments in the cross examination of the petitioner
conducted at the instance of the respondent. No prejudice would
be caused to the petitioner, if the documents are allowed to be
placed on record. It is submitted that, learned Magistrate had
insisted that the compilation of document may be produced and
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therefore these documents were adduced in evidence. Thereafter,
there was change in Magistrate and Court was not regularly
functioning on account of pandemic of Covid - 19. The learned
Magistrate has assigned reasons for allowing the application. The
cost was imposed upon Respondent No.2 which has been accepted
by the petitioner. If the documents are not allowed to be taken on
record, prejudice would be caused to the Respondent No.2. The
Respondent No.2 had not delayed the proceedings in any manner.
This fact has been referred to by the Court below while passing the
order. The proceedings can be expedited by this Court.
4. On perusal of the documents on record, it is apparent that
the proceedings initiated by the petitioner are pending since -
2013. The affidavit in evidence of the petitioner was adduced and
she had been cross examined. The cross examination was
completed on 21.08.2018. The petitioner has rightly submitted
that there is no application on record at the time of completion of
cross examination praying that the respondent may be permitted to
furnish the compilation of documents. It is pertinent to note that
the cross examination was completed on the aforesaid date and the
application for placing the documents on record was preferred by
the Respondent No.2 on 19.07.2019. The application is vague but
it is not specified the reasons for placing on record the documents
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and what is the relevance of the said document. The learned
Magistrate has allowed the application by observing that closing
pursis is already filed by the respondent. However, in view of
Section 28 of the DV Act, production of documents is allowed. To
give an opportunity to respondent to file documentary evidence on
record was subject to cost of Rs.1,000/-. The learned Sessions
Judge has confirmed the order of learned Magistrate by observing
that the respondent has not been delaying the proceedings. It
cannot be considered as cogent reason for allowing the application
preferred by the Respondent No.2. The opportunity was available
to the Respondent No.2 to insist upon exhibiting the said
documents when the cross examination of the petitioner was
conducted. The application was preferred belatedly. It was not
made clear as to under what provisions such application is made
and entertained by the Court. Considering the factual aspects of
this matter, the impugned orders are required to be set aside.
5. Hence, I pass the following order :-
ORDER
i. Writ Petition No.1307 of 2021 is allowed;
ii. Impugned order dated 14.11.2019 passed by the
learned Chief Metropolitan Magistrate, Court, Ballard Pier,
Mumbai and order dated 22.01.2021 passed by learned
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Additional Sessions Judge, City Civil & Sessions Court, Gr.
Mumbai in Criminal Appeal No.992 of 2019 are set aside;
iii. Writ Petition is disposed off accordingly.
(PRAKASH D. NAIK, J.)
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