29 cr appln 4527-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4527 OF 2010 Santosh Banbihari Giri .. Applicant Vs The State of Maharashtra & Anr .. Respondents Mr. K.H. Giri for the Applicant Ms. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 14th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the applicant-husband and learned APP for the State. 2. Respondent no.2-wife filed an application for maintenance before the learned JMFC, 9th Court, Thane. The said application under Section 125 Cr.P.C. came to be allowed by the learned Magistrate by order dated 3rd December 2008. 3. Being aggrieved thereby, the applicant preferred Revision being C.R.A. NO. 268 of 2008 before the Sessions Court at Thane. By order dated 18th August 2010, the learned Sessions Judge dismissed the said CRA, hence, this petition. 4. The applicant has assailed the order of the Magistrate on 1 29 cr appln 4527-10.doc the following grounds which are raised in the present petition: a. The learned Judicial Magistrate First Class, Thane has failed to follow the procedure of law while recording the evidence, as laid down u/s 126(2) of the Code of Criminal Procedure. b. The learned Judicial Magistrate First Class, Thane made flagrant error of law by permitting respondent no. 2 to file examination in chief in the form of affidavit. c. The learned Judicial Magistrate First Class, Thane made flagrant error of law by not taking the evidence in the presence of the Applicant against whom an order of payment of maintenance was proposed to be made. d. The learned Judicial Magistrate First Class, Thane made blatant error of law by ignoring recording of evidence, which is mandatory even in a proceeding under section 125 of Cr.P.C. e. The learned Judicial Magistrate First Class, Thane failed to follow the provision of Section 296 of Cr.P.C. which requires that the evidence of any person whose evidence is of a formal character only may be given by affidavit. f. The learned Judicial Magistrate First Class, Thane failed to apply his judicial mind that the evidence of respondent no. 2 is not of a formal character and therefore, cannot obviously apply when 2 29 cr appln 4527-10.doc u/s 125 of the Cr.P.C., the question relating to the neglect or cruelty on the part of the husband, the income of the husband and the quantum of maintenance be given to the wife are to be decided. g. The learned Judicial Magistrate First Class, Thane failed to follow the procedure of recording evidence of respondent no. 2 by following the procedure of summons trial case as required u/s 254 of Cr.P.C. h. The learned Judicial Magistrate First Class, Thane passed by impugned order without recording evidence as required in the main part of Sub-Section (2) of Section 126 of Cr.P.C. 5. It is observed that none of these grounds were raised in the CRA preferred by the applicant before the Sessions Court. In view of the fact that the applicant had not raised any of these grounds in his C.R.A., he cannot be allowed to raise the same in this application. 6. Thereafter, it is submitted that the applicant is unemployed and he has no source of income,hence, he would not be able to pay amount of Rs. 4000/- per month to respondent no. 1. It is further submitted that respondent no. 2 is gainly employed. As far as these two grounds are concerned, it is observed that the applicant did not examine himself in support of his case whereas respondent- wife had deposed that the applicant refused and neglected 3 29 cr appln 4527-10.doc to maintain her despite the fact that he is earning Rs. 50,000/- per month. Thus,the evidence of respondent-wife remained controverted. In this view of the matter, no fault can be found in the order of the learned Magistrate or in the order of learned Sessions Judge. No case is made out for interference. 7. Application disposed of. [SMT. V.K. TAHILRAMANI, J.] 4