The Magistrate cannot decide a substantive application under Section 125 of the CrPC merely on the basis of an affidavit. Evidence must be recorded in accordance with the procedure prescribed for summons cases under Section 126(2) of the CrPC.

JUDGMENT - A.B. PALKAR, J.:---Rule. Shri G.G. Modak, the learned Counsel for respondent No. 1, accepts service of rule and Shri A.S. Sonare, the learned Additional Public Prosecutor accepts the same on behalf of State. Rule. Heard forthwith by consent.

2.This petition raises a very simple point regarding jurisdiction of the Magistrate to decide an application for maintenance under section 125 of the Criminal Procedure Code, on the basis of an affidavit. The petitioner herein was a respondent in proceeding under section 125 commenced at the instance of the present non-applicant respondent No. 1 Kalpana Shankar Gohane. The said application of non-applicant No. 1 the wife of the present petitioner was registered as Misc. Criminal Application No. 197/95 which was decided on 12-3-1996 by Chief Judicial Magistrate, Wardha and the said order was confirmed in Criminal Revision Application No. 30/96 by the Additional Sessions Judge, Wardha by order dated 8-10-1997 granting monthly maintenance at the rate of Rs. 500/- from the date of the application to the present respondent Kalpana Shankar Gohane. The order of the learned Magistrate clearly shows that the present petitioner was served with a summons. He had appeared in Court. He had engaged an Advocate for his defence but he did not file any written statement and he did not remain present on further dates and therefore the learned Magistrate called upon the non-applicant No. 1 who was applicant before him to file an affidavit and proceeded to decide the application on the basis of the affidavit filed by the wife.

3.The only point that is canvassed before me in this writ petition is whether the learned Magistrate could proceed to decide the substantive application under section 125 of the Criminal Procedure Code on the basis of an affidavit that also by calling upon the applicant to file an affidavit instead of recording her evidence. The procedure prescribed for an application under section 125 is contained in section 126 and sub-section (2) of section 126 clearly states that the procedure applicable to the trial of summons cases shall be applicable to the proceedings under section 125 of Criminal Procedure Code. Therefore, the law is clearly laid down in section 126 itself and that being the position, the substantive application under section 125 cannot be decided merely on the basis of an affidavit. This view has been taken by this Court in a case reported in 1982(1) Bom.C.R. 329 (Ramesh Laxman Contractor v. Mrs. Jayshreeben Ramesh Contractor)1. It reads as under:---

"The proviso to section 126(2) provides that if the Magistrate is satisfied that the person against whom an order for maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte. However, this does not mean that the Magistrate shall pass an order without recording evidence as required in the main part of sub-section(2) of section 126. The proviso only dispenses with the necessity of recording evidence in the presence of the other side if that other side is wilfully avoiding service or wilfully neglecting to attend the Court. Section 126(2) itself provides that all the evidence shall be recorded in the manner prescribed for summons cases, under Chapter 20. Section 254 in the said Chapter lays down that if the Magistrate does not convict the accused, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. The recording of evidence, therefore seems to be mandatory even when the opponent in proceedings under section 125 is avoiding service or is wilfully neglecting to attend the Court. Section 296 of the Code, which permits the Court to receive the affidavit of any person whose evidence is of a formal character, cannot obviously apply when under secti

Click Here to Read the rest of this document