Uttarakhand High Court
Unknown vs Mahavir Singh Rawat on 4 November, 2022
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
C482 No.353 of 2019
Hon'ble Sharad Kumar Sharma, J.
Ms. Sunayana Kohli Kothari with Mr. Sagar
Kothari, Advocate for the applicant.
Mr. T.C. Agarwal, Deputy Advocate General
with Mrs. Lata Negi, Brief Holder for the State.
Mr. Pawan Mishra, Advocate for respondent
no.2.
The question which engages consideration in
the present C482 application is that in a Criminal
Complaint Case No.1150 of 2018, Anita Gusain Vs.
Mahavir Singh Rawat, which is a proceedings
initiated under Section 18, 19, 20 and 21 of the
Domestic Violenc Act, the respondent no.2 had
filed an application on 25.09.2017, being Paper
No.22 Ka for the purposes of leading additional
evidence in the light of the provisions contained
under Section 25 of the Domestic Violence Act.
The said application was considered by the court of
Additional Chief Judicial Magistrate IVth,
Dehradun, in the Complaint Case No.1150 of 2014
and same has been rejected by an order of
07.09.2018. On a challenge being given to the said
order in Criminal Appeal No.154 of 2018
(wrongfully mentioned as Criminal Revision). The
said Criminal Appeal was dismissed by one of the
impugned judgments under challenge i.e.
08.02.2019.
The C-482 application was preferred before
this Court on 07.03.2019 and the Coordinate Bench,
initially after considering the contentions raised by
the counsel for the applicant, that the denial to lead
evidence to the applicant, would rather prejudice
his rights to defend himself in the proceedings
under the Domestic Violence Act, and further the
Court has referred to the various dates on which the
proceedings were held before the learned trial court
and without assigning the purpose for which it was
adjourned, the application was rejected.
The respondent no.2 was noticed and having
put in appearance, have filed their counter affidavit
on 15.09.2022. The counsels agreed to address the
C482 application on merits of the matter.
Learned counsel for the applicant submitted
that owing to the order sheet, which has been
placed on record, the lack of diligence in
participation in the proceedings of the Criminal
Complaint Case No.1150 of 2018, cannot be
directly and exclusively attributed to the present
applicant, which could be derived, as to be a reason
to deny an opportunity for leading an additional
evidence, owing to the fact that the failure to
conduct the proceedings, as reflected in the order
sheet, would be jointly reflected to be shared by all
the parties to the proceedings including the court
itself also. Be that as it may.
In order to balance the equities and to
provide an effective opportunity to the parties to the
proceedings to facilitate the Court to decide the lis
effectively on its own merits, it would be apt for the
application, preferred for the purposes of leading
additional evidence under Section 25 of the
Protection of Women From Domestic Violence Act
of 2005, that has to be rationally considered in
order to enable the party to lead the evidence in
support of his case.
The reason for denial, which has been given
in the impugned order which was owing to the past
absence or lack of diligence in participation of the
proceedings, that old act cannot be borrowed for the
purposes of considering the application under
Section 25 of the Act, which has to be exclusively
considered on its own merits which cannot shut the
door of evidence of the applicant, whether at all the
evidence which was required to be adduced by the
present applicant could be closed on an application
of respondent under Section 25 of the Act of 2005.
But owing to the order sheet and the manner
in which the proceedings have been carried, taking
a pragmatic view, this Court while allowing the
C482 Application and setting aside the impugned
order allows the application Paper No.22 Ka
preferred under Section 25 of the Act of 2005
thereby granting liberty to the applicant to adduce
the additional evidence which the applicant
intended to adduce as per the application Paper
No.22, Ka as preferred by the respondents, due to
which it was ordered to be closed.
It is on the said application of the respondent
that the impugned order of 07.09.2018 was passed,
but taking a pragmatic view and particularly in
order to enable the parties to the proceedings, to
avail full and complete opportunity to adduce their
evidence, while allowing the C482 application, the
order dated 07.09.2018 would stand to be modified
to the extent, that the closure of the opportunity to
lead evidence by the present applicant, as it has
been observed in the impugned order dated
07.09.2018, would stand quashed. The applicant
would be permitted to lead evidence within six
weeks from the date of the receipt of the certified
copy of this judgment and the learned court of
Additional Chief Judicial Magistrate IVth,
Dehradun, is requested to decide the proceedings of
Complaint Case No.1150 of 2014 Anita Gusain Vs.
Mahavir Singh Rawat, within a period of six
months thereafter.
However, allowing of the 482 Application
would be a subject to the condition that applicant
deposits a sum of Rs.5,000/- by way of a cost in the
accounts of High Court Bar Association Advocates
Welfare Fund and place the proof of deposit before
court below.
It is only after the deposit of the said amount
and the proof of the same being placed before the
court, the court will proceed to decide the matter as
directed above.
(Sharad Kumar Sharma, J.)
04.11.2022
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