Jahirabee vs The State of Maharashtra

A.I.S. Cheema, J.—Rule. Rule made returnable forthwith and heard finally with the consent of the parties. Heard learned counsel for the Petitioner, learned A.P.P. for Respondent No. 1 State and learned counsel for Respondent No. 5. Respondent Nos. 2 to 4 though served, are not present.

The Petitioner, who was Respondent No. 2 in Criminal M.A. No. 135 of 2011 pending before the Judicial Magistrate, First Class, Paranda, is aggrieved by the order of the Judicial Magistrate, First Class directing Respondent No. 2 to lead her evidence first and thereafter lead evidence of her witness and further directing her to specify whether she wants to lead her evidence or she only wants to lead evidence through witness. Against the order passed by the trial Court, Criminal Revision No. 65 of 2013 was filed before the Sessions Judge, Osmanabad. The Sessions Judge, rejected the said Revision by order dated 12th July, 2013.

The learned counsel for Petitioner submits that the Petitioner resides at Mumbai and thus she wanted to examine her witnesses but the Court has put her to choice in view of application filed by present Respondent Nos. 2 to 4. According to the learned counsel, in civil matters the party has to lead evidence first and then the evidence of the witnesses, but this is not applicable in the criminal matters.

Learned counsel for Respondent No. 5 submitted that although Section 28 of the Protection of Women from Domestic Violence Act, 2005, in sub section (2) gives choice to the Magistrate regarding following its own procedure, but according to the counsel, the same must be as per the provisions of Code of Criminal Procedure, 1973.

The order passed by the Magistrate was challenged in the Criminal Revision No. 65 of 2013 and the Sessions Judge observed that there was no irregularity or illegality in the order passed by the Judicial Magistrate, First Class, where the present Petitioner was directed to lead evidence first.

Section 28 of the Protection of Women from Domestic Violence Act, 2005, reads as under:

"28. Procedure. (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences u/s 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 disposal of an application u/s 12 or under sub section (2) of section 23."

Looking to the provision of sub section (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005, there is discretion given to the Magistrate regarding laying down procedure for disposal of such application. Admittedly, the matter related to proceedings u/s 12 of the Protection of Women from Domestic Violence Act. In the circumstances, when the Magistrate has exercised the jurisdiction and Sessions Court has not interfered in the Revision, I do not find necessary to invoke writ jurisdiction to interfere in the impugned orders when on the face of it, no illegality as such is shown.

The Writ Petition is rejected. Rule stands discharged.