cr appln 923-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 923 OF 2010 Anil Savalaram Sawant .. Applicant Vs The State of Maharashtra & Anr. .. Respondents Mr. R. Sathyanarayanan for the Applicant Mr. P.S. Chavan for Respondent no. 2 Ms. A.A. Mane, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J. DATE OF RESERVING THE ORDER : 14th September, 2010 DATE OF PRONOUNCING THE ORDER : 27th September, 2010 P.C.: 1. Heard learned advocate for the applicant, learned advocate for respondent no. 2 and learned APP for the State. 2. The applicant herein is the respondent in C.C. No. 88/N of 2008 on the file of the Addl. Chief Metropolitan Magistrates, 17th Court, Borivali. Respondent no. 2 herein was married to the applicant. Matrimonial dispute arose between the parties,, hence respondent no. 1 filed an application before the learned Magistrate under Section 12 1 cr appln 923-10.doc and some other Sections of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Domestic Violence Act") seeking certain reliefs. 3. In the proceedings, on 20.06.2009, the respondent herein filed her examination-in-chief by way of affidavit. Hence, applicant herein filed an application stating that there is no provision either in the Cr.P.C. or under the Domestic Violence Act to file an affidavit as a substitute for the oral evidence. Hence, the affidavit of evidence filed by the wife be struck down and she be directed to lead oral evidence. The application was dismissed by the learned Magistrate. Aggrieved by the said order, the applicant has approached this Court. 4. The learned counsel appearing for the applicant submitted that the oral evidence must be direct and there is no specific provision like the Negotiable Instruments Act to let in evidence by way of filing affidavit. The learned Counsel for the applicant further submitted that the evidence includes examination-in-chief and cross-examination. The examination-in-chief should be by way of oral evidence and, if there is any deviation from the said procedure, a prejudice would be caused to the parties. 2 cr appln 923-10.doc 5. Per contra, the learned counsel appearing for respondent no. 2 submitted that the Act provides for speedy disposal and as per Section 12(5) of the Domestic Violence Act, the application should be disposed of within a period of sixty days from the date of its first hearing. The learned counsel for respondent no. 2 further submitted that as per Section 28 of the Domestic Violence Act, the normal procedure to be adopted is governed by the provisions of Cr.P.C, but under Section 28(2) of the Act, the Court can lay down its own procedure for disposal of an application under Section 12 or under sub-Section (2) Section 23 of the Act. He submitted that reliefs under the Domestic Violence Act are civil in nature and right to give evidence on affidavit has been introduced even in the C.P.C. in the year 2002 itself. 6. In order to better appreciate the controversy, it would be proper to reproduce Section 28 of the Domestic Violence Act. The procedure to be adopted as per Section 28 of the said Act is as follows : Procedure: (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-Section (1) shall prevent the Court from laying down its own procedure for 3 cr appln 923-10.doc disposal of an application under Section 12 or under Sub-section (2) of Section 23. This clause provides that proceedings relating to application and orders for reliefs in relation to protection, residence, monetary reliefs, custody, compensation and application for interim relief or seeking exparte orders shall be governed by the provisions of the Cr.P.C., 1973, however, Sub-clause (2) envisages that the Court may lay down its own procedure for disposal of applications for any relief under Section 12 or for exparte orders covered under Section 23(2). 7. The learned counsel for the applicant submitted that under Cr.P.C. evidence of a formal character may be given by affidavit and the evidence of the respondent wife cannot be said to be of a formal character. Hence, the affidavit filed by the wife in a case under Domestic Violence Act cannot be considered and it be struck down. 8. It is true that as per Section 60 of the Indian Evidence Act, the oral evidence has to be led directly in all cases, however, evidence on affidavit is not unknown to criminal jurisprudence and similar provisions are found in Section 295 and Section 296 of the Cr.P.C. The evidence of 4 cr appln 923-10.doc witnesses is, as a rule, recorded in open court in the presence of the presiding officer, as seen from Section 274, Section 275 and Section 276 of the Code. In fact, Section 273 stipulates that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader. Therefore, the rule is that evidence shall be recorded in open Court. Clearly, the provisions in the Cr.P.C. permitting evidence by affidavit are exceptions. An exception is made in certain cases including when any application containing allegations against any public servant is made during the course of trial, the Court may direct the applicant to give evidence by affidavit. So also evidence of formal character can be taken by affidavit. 9. The scheme of the Cr.P.C. also shows that this rule that every witness should be examined on oath in open Court in the presence of the accused is applicable to private complaint cases also. The procedure that follows pursuant to a complaint under Section 138 of the Negotiable Instrument Act is that of a private complaint case. An amendment was also brought with regard to the procedure in the Negotiable Instruments Act under Section 145 of the Act which is as 5 cr appln 923-10.doc follows : 145. Evidence on affidavit : (1) Notwithstanding anything contained in the Cr.P.C., 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it things fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. So, Section 145(1) of the Negotiable Instrument Act is a departure from the norm. The complainant would otherwise have been bound to give his chief-examination on oath, but he is given the option to decide whether he should enter the witness box for his chief-examination or whether he should give his evidence on affidavit. The Division Bench of the High Court of Madras in the decision of P. Janakumar Vs G. Pandiyaraj reported in 2009(1) CTC 763, while dealing with the provisions under Section 145 of Negotiable Instruments Act has observed that "this provision has been introduced only to reduce the time factor, considering the pile-up of cheque bouncing cases. Section 145 of the Code was introduced to reduce the time taken to complete the trial in these cases. So our construction must advance the object, 6 cr appln 923-10.doc without violating the language. The chief-examination of the complainant can be furnished by affidavit. The court shall permit him to do so." 10. Though like in the Negotiable Instruments Act, in the Domestic Violence Act, it is not specifically stated that the evidence may be given by the witness on affidavit, Section 28(2) provides for a deviation from the normal procedure as contemplated under the Cr.P.C. and it gives the Magistrate freedom to lay down its own procedure to dispose of a case. The main object behind adding this provision is that proceedings under these sections of the Domestic Violence Act, should be disposed of expeditiously which is clear from Section 12(5) of the Domestic Violence Act which provides that the Magistrate shall endeavor to dispose of the application made under Sub-section (1) within a period of sixty days from the date of its first hearing. As such, it is open to the Court in order to reduce the time to dispose of the proceedings, to allow the chief-examination of the witnesses to be furnished by affidavit, which in my view is permissible as per Section 28(2) of the said Act. Moreover, no prejudice can be said to be caused to the applicant as he has the right to cross-examine the respondent about the contents of the affidavit. 7 cr appln 923-10.doc 11. Learned advocate for the applicant submitted that there is another ground on which the affidavit filed by the respondent-wife by way of examination-in-chief cannot be taken into consideration. He submitted that the said affidavit is not in the prescribed format, hence, it cannot be considered. In support of his contention, he placed reliance on Rule 7 of the Protection of Women from Domestic Violence Rules, 2006. Rule 7 reads as under : "7. Affidavit for obtaining exparte order of Magistrate - Every affidavit for obtaining exparte order under sub-section (2) of section 23 shall be filed in Form III" Rule 7 provides that every affidavit obtaining exparte orders from a Magistrate under Section 23(2) shall be filed in Form III. Form III gives a format of affidavit. Learned advocate for the applicant pointed out that the affidavit filed by respondent by way of examination-in-chief is not in the said format, hence the learned Magistrate cannot look into the said affidavit. As far as this aspect is concerned, it is seen that the affidavit mentioned in Rule 7 is an affidavit for obtaining exparte orders from a Magistrate. The present case is not at the stage of obtaining exparte orders and by the said affidavit, the respondent-wife was not seeking any exparte orders, hence, I 8 cr appln 923-10.doc do not find any merit in this contention. 12. The learned counsel for the applicant again reiterated that evidence by way of affidavit cannot be taken into consideration. In support of this contention, he has placed reliance on a decision of the Supreme Court in the case of M/s. Mandvi Co-op Bank Ltd Vs Nimesh B. Thakore reported in CDJ 2010 SC 042 : (2010) 3 SCC 83. On perusal of the said decision, I find that it is not applicable to the present case, as in the case relied upon, the Supreme Court observed that the 'accused' has no right to give his evidence on affidavit. Here, I am not considering the right of an 'accused' but of a complainant, hence, this decision is of no help to the applicant. 13. For the above said reasons, I do not find any infirmity in the order passed by the learned Magistrate rejecting the application of the present applicant to strike down the affidavit filed by the respondent-wife by way of her examination-in-chief. 14. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 9 cr appln 923-10.doc 10