________________________________________________________________ Whether the reporters of the local newspapers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 23 of 2010. Date of Decision: May 27, 2010. ___________________________________________________ Gurbachan Arora Petitioner. Versus Seema Arora and another Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?Yes. For the Petitioner : Mr. Rajinder Dogra, Advocate. For the respondents : Mr. Tarlok Chauhan, Advocate. Surinder Singh, J (oral): The petitioner felt aggrieved by the order passed on 11.1.2010 by the learned Sub Divisional Judicial Magistrate, Rampur, on an application moved by the petitioner under Section 126(2) read with Section 311 of the Code of Criminal Procedure, seeking an opportunity to cross-examine the witnesses, who appeared to have been cross- examined in his absence by an advocate, not authorized by him, which was dismissed. Hence, the instant petition under Section 482 of the Code of Criminal Procedure, in short “the Code”. 2. In short, the facts in brief giving rise to the present petition can be stated thus. The petitioner was - 2 - married to respondent No.1 Seema Arora, in the year 1991. Out of this wedlock, she gave birth to respondent No.2 Shivani Arora. The petitioner and respondents had lived together, but some dispute arose between them and it became difficult to them to live together. Thus, respondent-wife moved an application under Section 125 of the Code, for grant of maintenance from her petitioner-husband, which was resisted and contested by him by leveling counter allegations. 3. Both the parties were being represented by their respective counsel. Shri N.C. Chauhan, Advocate was engaged by the petitioner to defend his case. The case was listed on 24.10.2009 for the statement of the witnesses of the respondent-wife, on which date, she examined herself. Thereafter, it was adjourned for 3.12.2009 for recording the statements of the remaining witnesses and steps were required to be taken within a week. 4. On 3.12.2009, Shri N.C. Chauhan, learned counsel representing the petitioner-husband did not put in appearance and in his place, one Shri Nargesh Katoch, Advocate appeared vice counsel, on that date statements of three PWs, namely PW2 Subodh Sharma, PW3 Anish Ahmed and PW4 Mohammed - 3 - Ishfaq tendered their affidavits in evidence and cross- examined the evidence of the respondent-wife was closed and the case was fixed for 19.12.2009, for the statements of the witnesses of the petitioner-husband. 5. On 19.12.2009, an application under Section 126(2) read with Section 311 of the Code was moved by the petitioner-husband, on the ground that on 3.12.2009, he could not put in appearance as he suddenly fell ill and his counsel Sh. N.C. Chauhan was also not present in the Court. The aforesaid witnesses were examined in his absence and the Advocate appearing vice, could not effectively put the defence to the said witnesses (PW2, PW3 and PW4), thus he was materially prejudiced. 6. In reply, it is clearly admitted by the respondents herein that neither the petitioner- husband nor his counsel was present and they have willfully neglected to attend the Court, but the witnesses were present and they were duly examined in their absence. In para-3 of the reply, it specifically mentioned that the learned trial Court had cross- examined the witnesses and the defence of the petitioner-husband was duly put to them, therefore, the application deserved to be dismissed. - 4 - 7. It is a fact that the petitioner-husband had engaged Shri N.C. Chauhan, Advocate, to defend him and his Power of Attorney is on the record. It is also made out from the record as well as admitted by the respondents herein that on 3.12.2009, neither the petitioner-husband nor his counsel were present. Shri Nargesh Katoch, Advocate who appeared as vice counsel for the petitioner had no authority or instructions from the petitioner-husband to cross- examine the witnesses present. It transpires from the reply that the job of the advocate for petitioner was performed by the Presiding Officer of the Court by cross-examining the aforesaid witnesses, which practice is highly deplorable and uncalled for. A Magistrate for a party erodes the confidence in the system. 8. Section 126(2) of the Code requires to be taken note of, it reads as under:- “(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: - 5 - Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.” 9. The word “all” emphasis the fact that no evidence shall be taken in absence of the opposite party against whom the order of payment of maintenance is proposed to be made when his personal attendance is not dispensed with. The compliance of this section is mandatory. 10. Further Shri Nargesh Katoch, Advocate appeared vice counsel for the petitioner, was also not a duly authorized agent of the petitioner-husband, his power of attorney is not on record. It was only Shri N.C. Chauhan, Advocate, who was authorized to plead for and on behalf of the petitioner-husband. Therefore, in the aforesaid factual background, - 6 - impugned order dated 11.1.2010 is indefensible. The learned trial Court ought to have been given a fair and reasonable opportunity to the petitioner-husband to cross-examine the aforesaid three witnesses of the respondents, who were examined in absence of the petitioner-husband. If he or his advocate duly empowered was not present, the learned trial Court could have proceeded exparte instead of cross- examining the witnesses for the petitioner-husband itself. 11. Therefore, the instant petition is allowed and the order dated 11.1.2010, passed in Misc. Application No.8-4 of 2010 is quashed and set-aside. Consequently, the parties are relegated to the stage on the date immediately previous to 3.12.2009, therefore, it is directed that the parties herein shall put in appearance before the learned Trial Court on 16.6.2010, on which date, the petitioner-husband, who is respondent in the maintenance application, shall file the Process Fee and deposit the Diet Money to the tune of Rs.2100/- to summon PWs 2 to 4. Thereafter, the learned trial Court will fix a date for their examination and also affording an opportunity to the petitioner-husband to cross-examine the aforesaid three witnesses, namely PW2 Subodh - 7 - Sharma, PW3 Anish Ahmed and PW4 Mohammed Ishfaq, on a date to be fixed by it, as per convenience of the parties. 12. The cross-examination of the witnesses aforesaid conducted on 3.12.2009 shall have no effect and be not considered while deciding the case on merits. 13. In Cr.M.P. No.73 of 2010, it is ordered that upto-date interim amount shall be deposited by the petitioner-husband on or before 26.6.2010 in the learned trial Court, failing which the respondent herein are left at liberty to file execution petition. 13. Trial Court record be returned forthwith and the matter stands disposed of. May 27, 2010. (Surinder Singh), (Pds) Judge