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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
Nutan D. Sardessai, J.
Theresa D'Souza and Ors. - Appellants
Vs.
Norman W. Albuquerque - Respondent
Criminal Writ Petition No. 192 of 2018
Decided On : 29-01-2019
Domestic Violence Act - Civil Procedure Code - Order XLI - Rule 27 - Criminal Procedure Code - Section 482 - Constitution of India, 1950 - Article 227 - Protection of rights of women - Exercising criminal jurisdiction - Petition invoking the jurisdiction of this Court under Article 227 of Constitution of India read with Section 482 of Code of Criminal Procedure takes exception to order passed by Court of Sessions Goa in the Criminal Appeal pursuant to which learned Additional Sessions Judge had allowed application filed by the respondent under Order XLI Rule 27 of Code for production of additional documents - Learned Advocate for petitioners who contended that respondent had moved an application before District Court to effect that respondent and petitioners belonged to two different families and respondent was not a member of undivided joint family at any point of time - Respondent had not relied upon and produced earlier deposition of petitioners in divorce case wherein she had admitted that he was not a member of their family - Petitioners had filed a criminal case against him and examined husband of petitioner no. 2 who in his cross-examination had admitted that petitioner no. 1 was not related to him by blood and there was no domestic relationship with him - These documents were realized after going through impugned judgment and order and therefore he was seeking to rely on these documents - Learned Advocate for petitioners contended that this application moved on behalf of respondent was signed by him in person and there was no affidavit in support thereof – Held, Appellate Court admits additional evidence it should record its reasons for doing so - It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and statement of reasons may inspire confidence and disarm objection - Another reason of this requirement is that where a further appeal lies from decision record of reasons will be useful and necessary for the Court of further appeal to see if discretion under this rule has been properly exercised by Court below - Commission to record reasons must therefore be treated as a serious defect - But this provision is only directory and not mandatory if reception of such evidence can be justified under rule - Another two Judge Bench of Honble Apex Court held that powers conferred upon High Court under Articles 226 and 227 of Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers - No doubt Article 227 confers a right of superintendence over all Courts and Tribunals throughout territories in relation to which it exercises jurisdiction but no corresponding right is conferred upon a litigant to invoke jurisdiction under said Article as a matter of right - In fact power under this Article cast a duty upon High Court to keep inferior courts and tribunals within limits of their authority and that they do not cross the limits ensuring performance of duties by such Courts and Tribunals in accordance with law conferring powers within ambit of enactments creating such Courts and Tribunals - Only wrong decisions may not be a ground for exercise of jurisdiction under this Article unless wrong is preferable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and Tribunals resulting in grave injustice to any party - It considered the judgment where Apex Court held that power of superintendence conferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep subordinate Courts within bounds of then-authority and not for correcting mere errors - Considering these judgments and principles laid down there is ample warrant for exercise of jurisdiction under Article 227 of Constitution of India having come to a clear finding that Court below had exercised jurisdiction not vested in it and it was not a case merely of a wrong decision but there was a grave dereliction of duty and flagrant abuse of power by subordinate Courts - Writ Petition is allowed
JUDGMENT :
Nutan D. Sardessai, J.
1. Rule. Rule made returnable forthwith with the consent of the learned Counsel appearing for the parties. Learned Counsel appearing for the respondent waives service.
2. This petition invoking the jurisdiction of this Court under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure takes exception to the order dated 30/04/2018 passed by the Court of Sessions, North Goa, Panaji in the Criminal Appeal No. 135/2017 pursuant to which the learned Additional Sessions Judge had allowed the application filed by the respondent under Order XLI Rule 27 of the Code for the production of additional documents.
3. Heard Shri V. Rodrigues, learned Advocate for the petitioners who contended that the respondent had moved an application before the District Court to the effect that the respondent and the petitioners belonged to two different families and the respondent was not a member of the undivided joint family at any point of time. The respondent had not relied upon and produced the earlier deposition of the petitioners in the divorce case wherein she had admitted that he was not a member of their family. The petitioners had filed a criminal case against him and examined the husband of the petitioner no. 2 who in his cross-examination had admitted that the petitioner no. 1 was not related to him by blood and there was no domestic relationship with him. These documents were realised after going through the impugned judgment and order and therefore, he was seeking to rely on these documents. Shri V. Rodrigues, learned Advocate for the petitioners contended that this application moved on behalf of the respondent was signed by him in person and there was no affidavit in support thereof.
4. Shri V. Rodrigues, learned Advocate for the petitioners referred to the two statements which were dated 18/02/2008 and 09/12/2015 sought to be produced at the respondent's instance. The Domestic Violence Act proceedings at the petitioners' instance had culminated in an order dated 21/01/2017. The petitioners had filed their reply to the application dated 14/02/2018 filed by the respondent vehemently opposing the same that it was arbitrary, illegal and misconceived in law. The application was filed under the provisions of the Code of Civil Procedure whereas the proceedings under the Domestic Violence Act were enforceable under the Code of Criminal Procedure, 1973. In any event, the documents sought to be produced by the respondent bore no relevance to the matter, was made at a belated stage only to delay the proceedings and to harass the petitioners, not made with due diligence and therefore had pressed for the dismissal of the application. The learned Sessions Judge however, on hearing the arguments and the relevant proceedings of the Domestic Violence Act held that the provisions thereof were quasi civil and quasi criminal in nature and therefore the provisions of Order XLI Rule 27 CPC would be applicable to the proceedings under the Domestic Violence Act. In her assessment, the application squarely fell within the parameters of Order XLI Rule 27 of CPC and being relevant to decide the appeal had to be allowed and allowed the application.
5. Shri V. Rodrigues, learned Advocate for the petitioners relied in Union of India V/s. Ibrahim Uddin & Anr. [2012(5) ALLMR 462 (S.C.)] and submitted that the Appellate Court was clearly in error in allowing new evidence to be adduced in order to enable the party to raise a new point in appeal. No substantial cause whatsoever had been made out to permit the production of the documents assuming that such powers were vested in the Appellate Court.
6. Shri D. Andrade, learned Advocate for the respondents submitted that the documents were relevant for the purpose of a proper adjudication of the proceedings before the Appellate Court. That the respondent was a member of the joint family was not an issue before the Trial Court. It was his contention that the
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