Bombay High Court
Juber Gafur Shaikh vs The State Of Maharashtra And Another on 17 January, 2025
2025:BHC-AUG:1702
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 828 OF 2024
Juber Gafur Shaikh ... Petitioner
Age 33 years, Occu: Service,
R/o Village Hasta Tq. Kannad
Dist. Aurangabad
VERSUS
1. The State of Maharashtra
2. Seema Juber Shaikh ... Respondents
Age 32 years, Occu: Household,
R/o Plot No.25-26, Lane No.1,
Ganesh Colony, Aurangabad
Mr. Nilesh N. Bhagwat, Advocate for the Petitioner,
Mrs. A. S. Deshmukh, APP for Respondent No.1 State
Mr. Amol B. Chalak, Advocate for Respondent No.2
: Y. G. KHOBRAGADE, J.
: 17th January, 2025
JUDGMENT :
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1. Rule. Rule made returnable forthwith and heard finally
with consent of both the sides.
2. Heard both sides at length. With the assistance of the
learned counsel appearing for both sides, I have gone through the
record.
3. By the present Petition, the petitioner invoked the
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jurisdiction of this Court under Article 227 of the Constitution of
India read with section 482 of the Criminal Procedure Code and
takes exception to the order dated 15.04.2024 passed by the
learned Judicial Magistrate First Class, Court No.3, Aurangabad
below Exh. 122 and rejected prayer of the petitioner for recalling
the order dated 15.02.2024 passed below Exh. 1 in PWDVA No.
516 of 2021.
4. It is not in dispute that, the present respondent No.2 wife
initiated a proceeding under Section 12 of the Protection of
Women from Domestic Violence Act. After filing of reply by the
Petitioner, the matter was fixed for evidence. Accordingly,
respondent No.2 wife filed her evidence affidavit and lead further
evidence. After evidence of the respondent No. 2 is closed, the
present petitioner/ husband has filed his evidence affidavit,
however, failed to lead further evidence.
5. As per Roznama, on 15.02.2024, the learned trial Court
passed the impugned order as under:
"Despite repeatedly calling, respondent and his
advocate has not turn up towards the court until 3.30
p.m. No application is given. Hence, evidence of the
respondent is discarded and matter is put for
argument."
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6. Thereafter, on 29.02.2024, petitioner/husband (original non
applicant) filed an application Exh. 122, and prayed for recalling
of the order dated 15.02.2024 and seeking permission to lead
evidence.
7. On 15.04.2024, the learned trial Court passed the impugned
order holding that, the petitioner/original non applicant killing
time on one or other ground. It is further observed that, on
15.02.2024, the petitioner/husband was present in the Court
premises till 05.00 p.m., however, even after repeatedly called out,
none appeared till 4.30 p.m., but thereafter the Petitioner
appeared in the matter and stated that, his counsel is not
available. Further, on enquiry about depositing arrears of interim
maintenance, the petitioner/ husband flatly refused to deposit the
arrears of maintenance amount. Therefore, considering conduct of
the petitioner, the learned trial Court passed the impugned order
and rejected the application for recalling the order dated
15.02.2024, which does not appear perverse.
8. However, in order to give fair opportunity of trial, one
chance needs to be given to the petitioner to lead evidence by
recalling the order dated 15.02.2024 passed below Exh.1 as well
as order dated 15.04.2024 passed below Exh. 122, subject to
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payment of cost of Rs.15,000/- payable by the Petitioner/ husband
to the Respondent/ wife and depositing 50% of the maintenance
amount before the trial Court on or before 14.02.2025. In view of
discussion, I proceed to pass the following order:
ORDER
(i) The Order dated 15.02.2024 passed below Exh.1 as well
as order dated 15.04.2024 passed below Exh. 122 in
PWDVA No. 516 of 2021 by the learned Judicial Magistrate
First Class, Court No.3, Aurangabad are hereby recalled
and set aside subject to payment of cost of Rs.15,000/-
payable by the Petitioner /husband to the Respondent/wife
and on depositing 50% of the arrears of maintenance
amount before the trial Court on or before 14.02.2025.
(ii) After deposit of the amount as directed above, the
petitioner/husband shall appear before the learned trial
court on 24.02.2025 and shall enter into witness box and
the counsel for Respondent No.2 wife shall conduct further
cross examination.
(iii) Accordingly, Criminal Writ Petition is disposed off. Rule is
made absolute in the above terms.
( Y. G. KHOBRAGADE, J. )
JPChavan
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