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2016 Supreme(UK) 205
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Afroj - Applicant
Vs.
State of Uttarakhand & another - Respondents
Criminal Misc. Application No.354 of 2016
Decided On : 01-04-2016
The limited grounds for recalling witnesses under Section 311 CrPC and the need for proceedings to be carried out in accordance with the law.
Headnote:
Recalling of Witnesses - Section 125 CrPC - The court rejected the applicant's plea to recall witnesses under Section 311 CrPC, stating that the change of counsel and inability to ask material questions earlier are not valid grounds for recalling witnesses. The court found no anomaly in the orders passed by the Family Court and emphasized the need for proceedings to be carried out in accordance with the law, highlighting the limited grounds for recalling witnesses under Section 311 CrPC.
Fact of the Case:
The applicant challenged two orders passed in a case under Section 125 CrPC, where the court rejected the application to recall witnesses PW-1 and PW-2. The applicant and respondent no.2, both Muslims, were married but faced matrimonial discord. The respondent filed a suit for restitution of conjugal rights and an application under Section 125 CrPC for maintenance.
Finding of the Court:
The court found no anomaly in the orders passed by the Family Court and dismissed the applicant's plea, emphasizing the unnecessary delay caused by the applicant and his non-compliance with earlier court orders regarding interim maintenance.
Issues: The issues revolved around the rejection of the applicant's plea to recall witnesses under Section 311 CrPC and the non-compliance with court orders regarding interim maintenance.
Ratio Decidendi: The court emphasized the limited grounds for recalling witnesses under Section 311 CrPC and the need for proceedings to be carried out in accordance with the law.
Final Decision: The application under Section 482 CrPC was dismissed, and the court found no interference necessary in the matter.
Sudhanshu Dhulia, J.
1. Mr. Nagesh Aggarwal, Advocate for the applicant.
2. Mr. P.S. Saun, learned Deputy Advocate General with Ms. Mamta Joshi, learned Brief Holder for the State/respondent no. 1.
3. The present applicant before this Court has challenged two orders i.e., order dated 20.11.2015 and 07.09.2015 passed in a Case No.65 of 2012 under Section 125 CrPC (Smt. Reshma Vs. Afroj) by the Additional Judge, Family Court, Roorkee, District Haridwar. By the two orders effectively, the application of the applicant for recalling PW-1 and PW-2 under Section 311 CrPC has been rejected.
4. Brief facts of the case are that the applicant and respondent no.2, who are muslims by religion were married as per the Muslim Rites and Ceremonies at Mangalore, Haridwar on 14.05.2011. Thereafter, there appears to be a matrimonial discord.
5. According to the present applicant, the respondent no.2 left the house of the applicant and has started living with her parents. The applicant instituted a suit for restitution of conjugal rights which is pending before the court below being Original Suit No.136 of 2012 (Afroj Vs. Smt. Reshma). Meanwhile, respondent no.2 had also filed first information report against her husband and in-laws under Section 498A IPC where the applicant and his family members were arrested and subsequently released on bail.
6. Respondent no.2 has subsequently also filed an application under Section 125 CrPC which is pending before the Additional Judge, Family Court, Roorkee, District Haridwar. The two impugned orders arise out of the proceedings pending before the Additional Family Judge, Roorkee, District Haridwar in a case under Section 125 CrPC. From the two orders impugned before this Court, it further emerges that an interim maintenance was fixed by the court below which the present applicant has not given to the respondent no.2/wife so far.
7. Be that as it may, PW-1 (Reshma) was examined on 27.05.2015 and PW-2 (Naushad) was examined on 01.07.2015. Thereafter, a date was fixed for cross-examination on 06.07.2015, which the present applicant did not avail and the reason given is that lawyers were on strike and he could not come etc. In any case, the applicant moved an application for recalling the PW-1 and PW-2 which was rejected by the court below on 07.09.2015. Again an application was moved for similar reason, which was again dismissed by the Additional Judge, Family Court, Roorkee, District Haridwar on 20.11.2015.
8. The only reason assigned by the applicant for recalling the witnesses was that he has changed his lawyer and the earlier lawyer could not ask material questions from PW-1 and PW-2 as these questions are essential for the just disposal of the case, therefore these witnesses need to be recalled. This plea of the present applicant did not find favour with the Additional Judge, Family Court, Roorkee, Haridwar, and as already stated above, this application has been rejected. The two impugned orders have been perused by this Court which are annexed as Annexure Nos. 5 and 7 to the present application. This Court does not find any anomaly in the orders impugned.
9. In view thereof since this Court finds absolutely no anomaly in the two orders passed by the Additional Judge, Family Court, Roorkee, District Haridwar, proceedings under Section 125 CrPC have to be carried in accordance with law.
10. In the present case, this Court finds that unnecessary delay is being caused by the applicant and his conduct leaves much to be desired as it has clearly come in the impugned orders that the applicant has not complied with the earlier orders of court below regarding the payment of interim maintenance. Moreover, in any case, recalling of witnesses under Section 311 CrPC is on very limited ground only where the Court feels that it is necessary for the just disposal of the case. For reasons that the applicant could not ask material questions from the witnesses earlier or that he has now changed his counsel, can never be a g
