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2022 Supreme(HP) 669
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SATYEN VAIDYA, J.
Pawan Kumar, S/o. Sh. Karam Chand - Petitioner
Versus
Smt. Yogmaya W/o. Sh. Pawan Kumar - Respondent
Criminal Revision No. 315 of 2022
Decided On : 14-11-2022
For the Petitioner: Sh. Nimish Gupta.
For the Respondent: Ms. Anjali Soni Verma.
Point of Law: Section 29 of Act vests Court of Sessions to hear and decide appeal against order made by Magistrate under Act.
Headnote:
Criminal Procedure Code, 1973 - Section 311 - Protection of Women from Domestic Violence Act, 2005 - Section 29, 12, 18, 19 - Seeking protection order - Residence/accommodation allowance - Maintenance allowance - Seeking leave to produce in evidence the birth certificate of her son - One of the allegations leveled by petitioner against respondent was that respondent had denied the paternity of the son born out of his wedlock with petitioner, which caused mental and emotional harassment and torture to the petitioner and resultantly, petitioner suffered agony and deterioration in health - Jurisdiction to hear and decide the appeal is vested in Court of Sessions, will include all the powers to set right the illegality or irregularity made out in order impugned before such Appellate Court. (Para 12).
Finding of the Court: Legality of order, passed by learned trial Court on application under Section 311 of Cr.P.C., it can be said without any hesitation that the same could not have been sustained on scrutiny at touch stone of settled legal principles. Section 311 Cr.P.C. vests the criminal Court with jurisdiction to allow evidence to be produced on record at any stage of the proceedings provided such evidence is found necessary for adjudication of the matter in issue. Perusal of order, passed by learned trial Court reveals that such consideration was totally missing therefrom - Court had dismissed the application of the petitioner for additional evidence merely on the ground that it was delayed and the son of the petitioner was not a party to the litigation. Learned trial Court has completely ignored that it had to decide the issue of alleged emotional abuse of petitioner and thus the evidence sought to be produced on behalf of the petitioner was necessary for imparting complete justice to the parties.
Result: Petition dismissed.
ORDER :
By way of instant petition, petitioner has taken exception to judgment dated 6.4.2022, passed by learned Sessions Judge, Chamba in Cr. Appeal No. 4 of 2022, whereby the appeal of respondent/complainant filed under Section 29 of Protection of Women from Domestic Violence Act, 2005 (for short the Act) has been allowed and the matter has been remanded to learned trial Court for deciding afresh after affording opportunities to the parties to lead evidence for proving/disproving the birth certificate and after calling the domestic incident report.
2. The parties hereafter shall be referred by the same status, which they held before learned trial Court.
3. An application under Section 12 of the Act was filed by petitioner before learned Judicial Magistrate 1st Class, Chamba against respondent, seeking protection order under Section 18, residence/accommodation allowance under Section 19, maintenance allowance under Section 20 and compensation order under Section 22 of the Act. For the purpose of adjudication of instant petition, it will suffice to notice only the relevant facts. One of the allegations leveled by petitioner against respondent was that respondent had denied the paternity of the son born out of his wedlock with petitioner, which caused mental and emotional harassment and torture to the petitioner and resultantly, petitioner suffered agony and deterioration in health. Petitioner also alleged that such conduct of the respondent lowered the reputation of petitioner in the eyes of general public. On such premise, compensation was sought from respondent.
4. Respondent denied the above noted allegations. He specifically denied that any son was born to him out of his wedlock with petitioner. Respondent categorically denied himself to be the biological father of such son.
5. During the pendency of the complaint, petitioner filed an application under Section 311 Cr.P.C., seeking leave to produce in evidence the birth certificate of her son, issued by Registrar of Birth and Death with further prayer to summon original record regarding registration of birth of said son from the office of Registrar Birth and Death, Municipal Council Chamba. Learned trial Court rejected the application of petitioner under Section 311 Cr.P.C. vide order dated 20.9.2021. The petitioner did not assail the said order of rejection separately.
6. The complaint of the petitioner was also dismissed finally by learned trial Court vide judgment dated 30.11.2021. Petitioner assailed the said judgment dated 30.11.2021 before learned Sessions Judge, Chamba under Section 29 of the Act. Learned Sessions Judge, Chamba vide impugned judgment has allowed the appeal of the petitioner and has remanded the case for decision afresh to learned trial Court, as noticed above. Learned Sessions Judge, Chamba has held the rejection of application of petitioner under Section 311 Cr.P.C. to be wrong and illegal and in such view of the matter, directions have been issued to learned trial Court to afford opportunities to the parties to lead evidence for proving/disproving the birth certificate of the son of petitioner.
7. I have heard the learned counsel for the parties and have also gone through the record carefully.
8. Mr. Nimish Gupta, learned counsel for the petitioner has contended that the impugned order is bad for two reasons, firstly that the order dated 20.9.2021, passed by learned trial Court rejecting the application of petitioner under Section 311 Cr.P.C. had attained finality and secondly, the petitioner had not raised any ground in her appeal laying challenge to aforesaid order. It has further been contended that in absence of any challenge to order dated 20.9.2021 before the learned Appellate Court the setting aside of such order by learned Appellate Court amounts to exceeding of jurisdiction vested in such Court.
9. On the other hand, Ms. Anjali Soni Verma, learned Legal Aid Counsel for the respondent supported the order having been passed in lawful exercise of juri
