: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.504 OF 2009 CRIMINAL WRIT PETITION NO.504 OF 2009 CRIMINAL WRIT PETITION NO.504 OF 2009 Harivijay Babasaheb Ghodke ... Petitioner V/s. Aishwarya @ Ranjana Harivijay . Ghodke & Anr. ... Respondents Mr.Mandar Limaye for the Petitioner. Mr.V.D. Raut for Respondent No.1. Ms.Alpa Jhaveri, APP, for Respondent No.2. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 21ST APRIL, 2009. DATE : 21ST APRIL, 2009. DATE : 21ST APRIL, 2009. P.C.: P.C.: P.C.: 1. Rule. 2. The learned Counsel appearing for the first respondent waives service. The learned APP waives service for the second respondent. Writ Petition is forthwith taken up for final disposal. 3. At the instance of the second respondent, an application was made by the Tehsildar under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "the said Act") before the learned Magistrate. The said application : 2 : was contested by the petitioner-husband by filing a reply. During the course of hearing of the said application, an application was made by the petitioner for issuing witness summons to the Manager of Idea Cellular Limited for production of record relating to three cell phone numbers. A prayer was also made for issuing witness summons to the Manager of BSNL for production of record relating to a telephone number. In the application it is contended that the second respondent was having relationship with one Mansur Shaikh. The allegation is that the telephone numbers referred to in the application were being used by the second respondent and the said Mansur Shaikh for communicating with each other. The said application made by the petitioner was opposed by the second respondent. By impugned order dated 26th December, 2008, the said application was rejected by the learned Judicial Magistrate. The order passed by the learned Judicial Magistrate reads thus : "Perused application and say. Heard advocates for the parties. The opponent has not filed any documentary evidence to prove particulars of documents on the point of alleged witness. The opponent is seeking aid to collect evidence. The opponent is at liberty to produce abstracts from the concern authority. Hence this : 3 : application stands rejected." 4. The submission of the learned Counsel appearing for the petitioner is that the learned Magistrate has committed an error by rejecting the said application. He submitted that the petitioner cannot be deprived of an opportunity of adducing evidence to substantiate his defence. The learned Counsel appearing for the second respondent opposed the petition by contending that the petitioner has been given a liberty to produce abstracts from the concerned authority and therefore there is no prejudice to the petitioner. He submitted that as a result of the tactics adopted by the petitioner, the application could not be disposed of within the period specified in sub-section 5 of Section 12 of the said Act. 5. I have carefully considered the submissions. The application made by the petitioner is not rejected on the ground that the evidence sought to be produced was irrelevant. The learned Judge observed that the petitioner can produce relevant extracts relating to the telephone connections. In my view, the learned Judge has committed a gross error. The petitioner was : 4 : not entitled to certified extracts relating to use of the relevant telephone numbers as a matter of right. Even if the petitioner would have secured such extracts, he was required to examine the concerned officers from the telephone companies for proving the extracts. The allegation of the petitioner is that the second respondent was continuously communicating with the said Mansur Shaikh from September, 2007 to May, 2008. The allegation is that the second respondent was using two cell phones and the said Mansur Shaikh was using one cell phone and one regular telephone connection of BSNL. The prayer made in the application filed by the petitioner was of issuing witness summons to the Manager of the Cell Phone Company as well as the Manager of BSNL for production of record relating to use of the said telephone numbers from September, 2007 onwards. The learned Judge has committed gross illegality by rejecting the said application. 6. Hence, I pass the following order : "O R D E R" "O R D E R" "O R D E R" (i). The impugned order is quashed and set aside and the application made by the petitioner at : 5 : "Exhibit-17" is hereby allowed. (ii). The learned Magistrate will direct the petitioner to take the witness summonses by hand and to serve the same to the concerned witnesses. It will be the responsibility of the petitioner to serve the witness summonses within the time specified by the learned Magistrate. (iii). Hearing of the application filed on behalf of the second respondent shall be concluded as expeditiously as possible. (iv). It will be open for the second respondent to apply for recalling the witnesses who have been already examined. (v). Rule is made absolute in above terms. (vi). Parties and concerned Court to act upon authenticated copy of this order. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]