Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Sikk) 7

HIGH COURT OF SIKKIM
Bhaskar Raj Pradhan, J.
Rekha Jain - Appellant
Versus
Anil Jain & Anr. - Respondents
W.P. (Crl.) No. 02 of 2021
Decided On : 01-04-2022

Advocates appeared:
Mr. Karma Tshering Tamang, Advocate, for the Petitioner; Ms. Gita Bista, Advocate, for the Respondents

The court emphasized that procedural justice must prevail in domestic violence cases, allowing for evidence to be considered even in the absence of explicit statutory provisions permitting witnesses to file documents.

Headnote:(A) Constitution of India - Article 227 - Protection of Women from Domestic Violence Act, 2005 - Sections 12, 17, 18, 19, 20, 21, and 28 - Challenge to the rejection of application for leading evidence in domestic violence proceedings - The court reiterates that evidence is essential for adjudication and that procedural justice must prevail; the refusal was a gross failure of justice. (Paras 5, 14, 16, 17)

(B) Domestic Violence - Statutory intent - The purpose of the Domestic Violence Act is to provide civil remedies to protect women from domestic violence, necessitating courts’ flexibility. (Paras 8, 9, 10)

Facts of the case:
The petitioner sought to challenge the Chief Judicial Magistrate's refusal to allow her to lead evidence under the Domestic Violence Act, arguing that the application was relevant for proper adjudication. The lower court held there was no provision allowing a witness to file documents on behalf of the aggrieved party.

Findings of Court:
The court found that the lower court's reasoning led to a manifest failure of justice by not considering the relevance of the evidence sought to be led.

Issues: Whether the rejection of the application for leading evidence constituted a procedural error affecting justice.

Ratio Decidendi: The court ruled that evidence is vital for adjudication and the magistrate has the discretion to ensure procedural justice, emphasizing that the application did not warrant outright rejection based on procedural technicality alone.

Result: Petition allowed, order of the Chief Judicial Magistrate set aside.

Judgement Key Points

Section 23(2) of the Evidence Act pertains to the manner in which evidence is to be taken in a proceeding, particularly emphasizing that the court has the authority to examine witnesses, ask questions, and direct the manner of recording evidence. This subsection underscores the court's discretion to ensure that the evidence is collected in a manner that serves the interests of justice, especially in summary proceedings or cases where formal rules of evidence are relaxed.

In the context of the case, the relevance of section 23(2) lies in its recognition that the court can permit the examination of witnesses and the submission of evidence beyond strict procedural formalities. The court's discretion under this section supports the view that procedural technicalities should not obstruct the pursuit of truth or justice. It also aligns with the principle that the court can lay down its own procedures, provided the fundamental objective of a fair trial is maintained (!) .

Furthermore, the case highlights that the court's authority under section 23(2) enables it to allow evidence to be led in a manner that may include documents filed on behalf of parties, as long as the relevance and fairness are preserved. This flexibility ensures that procedural rules do not become a barrier to substantive justice, especially in proceedings where the interests of vulnerable parties, such as victims of domestic violence, are involved.

Overall, the case demonstrates that section 23(2) provides a statutory basis for the court's discretion in managing evidence, emphasizing that procedural rules are subordinate to the overarching goal of delivering justice. This aligns with the broader principle that courts have the authority to adapt procedural techniques to the circumstances of each case, ensuring that procedural formalities do not hinder the substantive delivery of justice (!) .

Table of Content
1. challenge to rejection of evidence application (Para 1 , 2 , 3)
2. application rejected due to procedural issues (Para 4 , 5)
3. arguments on admissibility and jurisdiction (Para 6 , 7)
4. court’s discretion to amend applications (Para 8 , 9 , 10)
5. procedural requirements for domestic violence act (Para 11 , 12 , 13 , 14 , 15)
6. high court's power of superintendence (Para 16)
7. restoration of evidence application (Para 17)
8. outcome of the petition (Para 18)

JUDGMENT

Bhaskar Raj Pradhan, J. - The present petition under Article 227 of the Constitution of India seeks to challenge an order dated 20.08.2021 passed by the learned Chief Judicial Magistrate rejecting the petitioner's application for leading evidence.

2. The petitioner had preferred a petition under section 12 of the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act) seeking reliefs under Section 17 , 18, 19 (f), 20 and 21 thereof.

3. On 24.09.2019 the learned Chief Judicial Magistrate passed interim orders of protection in favour of the petitioner.

4. On 23.07.2021, during the proceedings, the petitioner moved an application to place certain electronic evidence (the application) through witness no.2 (Promod Jain) and to re-examine the petitioner on the limited aspect. The application also disclosed the type of evidence the petitioner was seeking to lead, its relevancy as well as the fact that she had recently traced the same. The relevant print outs of the electronic evidence was also placed for perusal before the learned Chief Judicial Magistrate.

5. On 20.08.2021 the learned Chief Judicial Magistrate disposed of the application for leading evidence on the ground that neither the Code of Criminal Procedure, 1973 (Cr.P.C.) nor the Domestic Violence Act allows a witness to file documents on behalf of the aggrieved party and therefore, even though these records may prove necessary for proper adjudication of the case, in the absence of any provision that can allow a witness of a party to file documents, the application was rejected. The petitioner is aggrieved.

6. Heard Mr. Karma Tshering Tamang, learned counsel for the petitioner as well as Ms. Gita Bista, learned counsel for the respondents.

7. Mr. Tamang took this court through the provisions of the Domestic Violence Act as well as the Cr.P.C. and submitted that the procedure that ought to have been followed by the learned Chief Judicial Magistrate was the summary procedure under the Cr.P.C. which provides for taking evidence in the manner provided in those provisions. It is his submission therefore, the learned Chief Judicial Magistrate was not correct in holding that there was no provision to take evidence. Ms. Gita Bista on the other hand vehemently opposed the present petition under Article 227 of the Constitution of India. She submits that the petition is not maintainable and if the procedure to be followed in domestic violence cases is the criminal procedure, the petitioner ought to have approached this court under section 482 Cr.P.C. and not under Article 227 of the Constitution of India. She further submits that the application for seeking to lead evidence is grossly delayed in as much as it was filed 18 months after the petition under section 12 of the Domestic Violence Act had been filed. It is also her submission that the petitioner has not approached this court with clean hands and material facts have been suppressed. Further, the learned counsel submits that the application lacks the necessary pleadings.

8. Sub-section (1) of section 28 of the Domestic Violence Act provides that proceedings under section 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Cr.P.C. Sub-section (2) of section 28 provides that nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

9. In Kunapareddy Alias Nookala Shanka Balaji

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