1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Naseem Bano Vs. State of Rajasthan & Anr. (S.B. Criminal Revision Petition No.1127/2007) S.B. Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. Date of Order :- 10th November, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.A.N. Khan, for the petitioner. Mr.Javed Chaudhary, public prosecutor. Mr.Sumer Singh, for the respondent. The petitioner has challenged the order dated 02.08.2007, passed by the learned Additional Sessions Judge No.1, Sikar, whereby the learned Judge has quashed and set aside the order dated 08.02.2007, passed by the Additional Chief Judicial Magistrate, Sikar wherein the learned Magistrate had granted maintenance to the petitioner. Mr. A.N. Khan, the learned counsel for the petitioner, has contended that the petitioner was examined as a witness and she was cross-examined on 08.06.2004 and 20.11.2002. Smt. Bhanwari (AW-2) was examined on 20.11.2004, Jahangir Beg (AW-3) was examined on 12.01.2005 and Bashir Khan (AW-4) was examined on 12.01.2005. As is obvious from the order-sheets of these dates, the witnesses were cross-examined by the counsel for the respondent. Despite the fact that the said counsel was authorised by the respondent to carry out the cross-examination, the learned Judge has set aside the order dated 08.02.2007 ostensibly on the ground that 2 the procedure prescribed under Section 126(2) Cr.P.C. has been flouted by the learned trial court. According to the learned counsel, the learned Judge has erroneously relied upon the case of Kana Ram Vs. Smt. Maghi [2006 (2) RCC 847]. For, the said case is inapplicable to the present case. In the said case, the counsel for the resopndent had clearly pleaded “no instruction”, wherein in the present, the counsel for the respondent has never pleaded “no instruction”. Therefore, the learned Judge has erred in relying upon the said case. On the other hand, Mr. Sumer Singh, the learned counsel for the respondent No.2, has contended that Section 126(2) Cr.P.C. is a mandatory provision. According to Section 126(2) Cr.P.C., a evidence can be recorded either in the presence of a persons against whom an order of payment could be made, or in case his personal attendance is dispensed with in the presence of his pleader. However, in the present case, the presence of the respondent was never dispensed with. Therefore, it was essential that the evidence be recorded in the presence of the respondent. According to the order-sheets, the respondent was not present, when his pleader cross-examined the witnesses. Hence, the evidence was recorded in his absence. Therefore, the learned Judge was justified in holding that the provision of Section 126(2) Cr.P.C. has been violated. He was, thus, justified in setting aside the order dated 08.02.2007. Heard the learned counsel for the parties and perused the impugned order. 3 It is, indeed, a settled principle of law that the proceeding under Section 125 Cr.P.C. is not a criminal proceeding, but is more in nature of a civil proceedings. While appointing a pleader, a party authorises the lawyer to carry out certain functions within the court. One of the functions so authorised is to cross- examine a witness and to have the evidence recorded by the court. Since the proceeding under Section 125 Cr.P.C. is more in nature of civil suit, therefore, the Section 126(2) Cr.P.C. cannot be taken to be a mandatory provision. The word “shall” would necessary have to be interpreted as “may”. In the present case, the respondent had authorised his pleader and the pleader had carried out the cross- examination of the witnesses. The same pleader had also argued the case finally when the matter was adjudicated upon by the learned Magistrate. Therefore, even if the evidence were recorded in the absence of the respondent, it would not cause any prejudice to him. After all, the said evidence was recorded in front of the pleader appointed by the respondent. Therefore, the learned Judge has taken a hyper-technical view of the requirement of Section 126(2) of Cr.P.C. Moreover, the learned Judge has relied upon a case, which is distinguishable on factual foundation. For, in the case of Kana Ram (supra), the pleader had specifically pleaded “no instruction”. However, in the present case, the pleader has never pleaded “no instruction” before the learned trial court. Therefore, the pleader was not only authorised, but also had ample power to carry out the cross-examination. Therefore, the learned Judge has erred in relying upon the opinion expressed by this Court in the case of Kana Ram (surpa). In catena of cases, the Hon'ble Supreme Court has 4 held that an opinion of a High Court or of the Hon'ble Supreme Court should not be taken as a provision of a statute. Prior to applying the opinion of the High Court, the trial court is duty bound to see if there is a similarity in the facts and circumstances of both the cases. As mentioned above, there is no similarity between the case of Kana Ram (supra) and the present case. Therefore, the opinion expressed by this court in the case of Kana Ram (surpa) is inapplicable to the present case. In this view of the matter, the petition is, hereby, allowed; the order dated 02.08.2007 is quashed and set aside. And the order dated 08.02.2007 is, hereby, confirmed. (R.S.CHAUHAN)J. Manoj Solanki-