Nitin Gupta vs Smt. Ankita Gupta
2021 Latest Caselaw 4354 MP

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                      THE HIGH COURT OF MADHYA PRADESH
                           M.Cr.C. No.40356/2021
                             ( Nitin Gupta vs. State of M.P.)

Gwalior, Dated : 16.08.2021

      Shri Ankur Mody, learned counsel for the petitioners.

      This petition under Section 482 of Cr.P.C. has been filed

challenging the order dated 30.07.2021 passed in Criminal Revision No.

10/2021 by the Sessions Judge, Sheopur, District Sheopur whereby order

dated 16.03.2021 has been set aside.

      It is argued that petitioner was married to respondent No.1 on

27.04.2015 at Agra. The petitioner is a resident of Gurgaon. The case was

filed under domestic violence by the respondent. She has left the house

of the petitioner on 15.08.2016 and lodged the complaint on 20.09.2016

and certain averments with respect to earning are made in the domestic

violence application. The reply was submitted on 21.02.2017 denying all

the allegations stating that the respondent No.1 is a dentist and is

gainfully engaged. It is argued that the respondent No. 1 in her

deposition before the court in para 33 and 34 has clearly stated that she is

not working as a dentist and is not gainfully employed. The evidence was

collected by the petitioner regarding gainful employment of the

respondent No.1 as a Dentist in Bhagya Jyoti Dental Clinic at Bangalore.

The aforesaid documents were placed along with a certificate under

Section 65-B of the Evidence Act and by filing an application under

Section 91 of Cr.P.C. for calling the record of the employee from Bhagya

Jyoti Dental Clinic Bangalore, the aforesaid application was dismissed

by JMFC on 3.12.2018 which was confirmed by the Sessions Judge on

19.09.2019. An M.Cr.C. bearing No.42579/2019 was preferred against

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.40356/2021 ( Nitin Gupta vs. State of M.P.)

the orders of rejection of application which was dismissed on

18.11.2019. A special leave petition was preferred which was registered

as SLP No. (Crl.) 465/2020. However, the SLP was dismissed on

10.02.2020. The order indicates that the petitioner is at liberty to request

for calling of Alok Raj as a witness. In the light of the order passed by

the Supreme Court, the petitioner moved an application before the JMFC

Court for summoning Alok Raj. On 16.03.2021, the application was

dismissed as Alok Raj was not a material witness in the proceedings.

Against which a criminal revision was preferred which was decided vide

order dated 30.07.2021 and the same was allowed. The order of JMFC

was set aside and it was held that Alok Raj is a material witness to the

proceedings. However, the petitioner was directed to ensure availability

of Alok Raj for which he was granted one opportunity at the cost of

Rs.5000/-. The petitioner filed an application for calling the witness Alok

Raj through summons but the court has refused the aforesaid prayer. It is

submitted that the aforesaid witness resides at Bangalore and it will not

be possible for the petitioner to call him. If the summons are being issued

by the court for presence of Alok Raj then he definitely will appear and

depose before the learned trial court. In the alternative, the petitioner has

argued that if the Dasti summons are provided to him then he will serve

the witness Alok Raj for his appearance before the trial court. It is argued

that as the Sessions Court has held that Alok Raj is a material witness, in

such circumstances, he should have been examined before the trial Court.

The petitioner has made a prayer that trial Court be directed to permit the

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.40356/2021 ( Nitin Gupta vs. State of M.P.)

petitioner to serve the witness Alok Raj for his presence before the trial

Court for deposition. But as the sessions court has granted only one

opportunity and the date is fixed today for deposition before the trial

Court, in such circumstances, he has prayed for grant of interim relief in

the matter. It is argued that some breathing time be granted to the

petitioner to enable him to serve Alok Raj Humdust.

Heard the learned counsel for the petitioner and perused the

record.

From the perusal of the record it is seen that the sessions court

while considering the rejection order passed by the learned JMFC

whereby the application under Section 91 has been rejected, the sessions

Court has found that Alok Raj is a material witness to the proceedings

and considering the judgment passed by the Supreme Court wherein the

liberty was extended to the petitioner to file appropriate proceedings to

make request to the court to consider permitting of examination of

witnesses, this Court deems it appropriate to dispose of this petition

under Section 482 of Cr.P.C. directing the learned trial Court to permit

the petitioner to serve Alok Raj by Dasti service. The dasti summons be

handed over to the petitioner for serving Alok Raj for his appearance

before the trial Court for deposition as only one opportunity was granted

by the sessions court to produce Alok Raj before the court for deposition.

Let dasti summons be handed over to the petitioner to serve Alok

Raj Humdust for his appearance before the learned trial court for

deposition on 6.9.2021. It is made clear that if the petitioner fails to serve

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.40356/2021 ( Nitin Gupta vs. State of M.P.)

the notices to Alok Raj, no further opportunity shall be granted to the

petitioner.

Petition stands disposed of with the aforesaid observations.

(VISHAL MISHRA) JUDGE van SMT VANDANA VERMA 2021.08.17 18:48:18

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