1

W.P. (Crl.) No. 02 of 2021

Rekha Jain vs. Anil Jain & Anr.

THE HIGH COURT OF SIKKIM: GANGTOK

(Criminal Jurisdiction)

-----------------------------------------------------------------------------------------

SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

-----------------------------------------------------------------------------------------

W.P. (Crl.) No. 02 of 2021

Smt. Rekha Jain,

W/o Shri. Anil Jain,

R/o D.P.H. Road, Near Janta Bhawan,

Gangtok, East Sikkim.

….. Petitioner

Versus

1.

Shri Anil Jain,

S/o Babulal Jain,

R/o Sudarshan Telecom,

Serial no.208,

Daisy Building Neco Garden Comples,

Opp. Zee5 experience LOFT, Vimar Nagar,

Pune-411014.

2.

Smt. Pista Devi Jain,

Wife of Babulal Jain,

R/o Sudarshan Telecom,

Serial no. 208,

Daisy Building Neco Garden Complex,

Opp. Zee5 experience LOFT

Vimar Nagar,

Pune-411014.

.... Respondents

Application under Article 227 of the Constitution of India.

--------------------------------------------------------------------------------

Appearance:

Mr. Karma Tshering Tamang, Advocate for the Petitioner.

Ms. Gita Bista, Advocate for the respondents.

--------------------------------------------------------------------------------

Date of hearing

:

11.03.2022 & 01.04.2022

Date of Judgment

:

01.04.2022

J U D G M E N T (O R A L)

Bhaskar Raj Pradhan, J.

1.

The present petition under Article 227 of the

Constitution of India seeks to challenge an order dated

2

W.P. (Crl.) No. 02 of 2021

Rekha Jain vs. Anil Jain & Anr.

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

3

W.P. (Crl.) No. 02 of 2021

Rekha Jain vs. Anil Jain & Anr.

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