IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE SEVENTH (7TH) DAY OF DECEMBER, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.2258 of 2010 Between: Boringi Srinivasa Rao & another … Petitioners And: State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.P.No.2258 of 2010 ORDER: This petition is filed under section 482 Cr.P.C. seeking direction to the learned IV Additional Chief Metropolitan Magistrate, Visakhapatnam to allow the petitioners to cross-examine PW.1- complainant. 2. Heard the learned counsel for the petitioners. None appears for the 2nd respondent-complainant. Perused the record. 3. The first petitioner is the husband of 2nd respondent. The second petitioner is the father of first petitioner. The 2nd respondent herein filed a complaint against the petitioners under the provisions of the Domestic Violence Act seeking various reliefs, including maintenance of Rs.30,000/- per month and compensation of Rs.5,00,000/- besides other reliefs. The learned Additional Chief Metropolitan Magistrate has taken cognizance of the case in DVC No.11 of 2008. During the course of enquiry, 2nd respondent- complainant was examined as PW.1 and her examination in chief was recorded. When the petitioner sought to cross-examine PW.1, it appears, the learned Magistrate gave a direction on 24.02.2010 that cross-examination of PW.1 be done by way of counter-affidavit. Aggrieved by the said direction, the present criminal petition is filed seeking a direction that the petitioners be allowed to cross-examine PW.1. 4. As seen from the docket proceedings of the Court below, PW.1 was examined in chief in the Court on different dates and the chief examination of PW.1 was completed on 02.12.2009 and the matter was posted for cross-examination on payment of costs of Rs.50/-, to 09.12.2009. On the said date, costs were paid and it was further directed that cross-examination of PW.1 by way of counter- affidavit as per the circular and the matter was posted to 30.12.2009. It appears that the learned District Judge, Visakhapatnam, issued a circular dated 01.09.2009 inter-alia, directing the Presiding Officers of the Courts to fix specified days for dealing with the cases under the D.V. Act and expeditiously dispose of the same. In the said circular, a copy of which is filed along with the material papers, it is stated that ‘since what is being granted under the Act is an interim measure, the Officers who are already authorized to deal with the cases in summary manner, can take evidence by affidavits and counter affidavits and decide the matter, which is only an interim measure instead as a regular trial.’ The above circular makes a reference to the High Court’s Circular in Roc No.1246/E1/2009 dated 27.08.2009, which merely directs the District Judges to take certain steps for expeditious disposal of the cases filed under Domestic Violence Act. The said circular issued by the High Court on 27.08.2009 does not prescribe any mode for recording of evidence by the Courts, nor does it enable the Presiding Officer to take the evidence by affidavits and counter- affidavits. 5. Section 28 of the Domestic Violence Act states that ‘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)’. Sub-section (2) of section 28 of the Act, however lays down that ‘nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23’. Section 12 of the Act lays down the procedure for making application to the Magistrate. Sub section (4) of section 12 states that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. Sub-section (5) of Section 12 says that the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of 60 days from the date of its first hearing. Thus, the period of three days mentioned in sub-section (4) is with reference to fixing the date of first hearing. Under sub-section (5), the Magistrate is required to make all necessary endeavours to dispose of the application within a period of 60 days from the date of first hearing. The circular issued by the learned District Judge on 01.09.2009, however, proceeds to state that an order has to be passed within three days from the date of presentation of the application and therefore, by adopting the procedure by taking evidence and recording of evidence in chief and cross examination, the very purpose of the Act would be defeated. It was, therefore, directed in the said circular that the Officers dealing with such cases can take evidence by affidavits and counter-affidavits instead of regular trial. The basis or premise on which, the direction is issued in the said circular dated 01.09.2009 to take the evidence on affidavits and counter-affidavits, appears to be inappropriate, inasmuch as sub-section (5) of Section 12 prescribes period of 60 days for disposal of the cases, but not three days as mentioned in the circular. Though, sub-section (2) of Section 28 enables the Court to lay down its own procedure for disposal of the applications under Section 12, it is needless to emphasize that such procedure shall conform to the time tested standards of conducting fair trial or enquiry and cannot be arbitrary in its nature nor prejudicial to the interests of either of the parties in its impact. The fundamental postulate of the concept of fair trial/enquiry is the right of cross- examination. Either party should have an opportunity to cross-examine the witness produced by the other party. The probative value of the evidence of any witness is ensured only when such witness is subjected to cross-examination and his/her evidence is tested by cross-examination. The denial to either party, the right to cross- examine the witnesses examined by the other party, would certainly result in serious prejudice to his interest. Under the guise of ensuring expeditious disposal of the cases, the valuable right of the party to a proceeding to cross-examine the witnesses of the opposite party cannot be defeated or frustrated. Howsoever, laudable may be the objective sought to be achieved, the means adopted to achieve the same cannot be unfair or prejudicial to the interests of either party. 6. In the present case, the examination in chief of PW.1 was duly recorded in Court and the petitioners were given opportunity to cross-examine PW.1 on payment of costs. On subsequent date of adjournment, however, the trial Court directed that the cross- examination of PW.1 be by way of counter-affidavit. It is inconceivable as to how the cross-examination of a witness could be brought on record by way of counter-affidavit. The impugned order dated 04.02.2010 is wholly unsustainable and is held liable to be set aside and is accordingly set aside. The petitioners shall be given an opportunity to cross-examine PW.1. 7. In the result, the criminal petition is allowed. ____________________ G.V.SEETHAPATHY, J Date: 07.12.2010 bss