Smt. Aruna @ Suvarna and Another vs Marilingappa

V. Jagannathan, J.—The short point for consideration in this petition filed u/s 397 R/w Section 401 of Criminal Procedure Code is whether the evidence by way of affidavit is permissible in respect of maintenance proceedings initiated u/s 125 of the Criminal Procedure Code.

The facts in brief are that the petitioners herein claiming to be wife and daughter respectively of the respondent, filed a petition u/s 125 of the Criminal Procedure Code seeking maintenance and the Trial Court by its order dated 23-2-2008 allowed the maintenance petition by awarding Rs. 500/- as maintenance per month to each of the two petitioners. Aggrieved by the said order the respondent-husband preferred a criminal revision petition before the Learned Sessions Judge in Crl. R.P. No. 37/2008 and the main contention put forwarded was that the Trial Court was in error in accepting the affidavits filed by the respective parties and Learned Sessions Judge consequently allowed the Criminal Revision Petition by holding that the procedure followed by the Learned Magistrate was unknown to law and it could not have permitted the parties to file affidavits and consequently the matter was remanded to the Trial Court for disposal in accordance with law after recording evidence of the parties. It is this order, which is called in question by the petitioners before this Court.

Learned Counsel Sri Baburao Mangane for the petitioners contended that evidence by way of affidavit is permissible in Section 125 of Criminal Procedure Code proceedings and in this regard referred to a ruling of this Court reported in 2006 (4) Crimes 692.

On the other hand, Learned Counsel for the respondent argued that the question of permitting the parties to file affidavit in respect of 125 of Criminal Procedure Code proceedings is not permissible in law and it is against the very procedure prescribed under the Criminal Procedure Code and in this connection he referred to Section 126 of the Criminal Procedure Code.

The question therefore that requires to be answered is that whether Section 126 of Criminal Procedure Code permits evidence by way of affidavit or not. It is therefore, necessary to refer to the very provision contained in the said Section, which reads as under;

All evidence to 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:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully 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.

A plain reading of sub-Section 2 of Section 126 makes it clear that all evidence in respect of Section 125 of Criminal Procedure Code proceedings shall have to be recorded in the manner prescribed for summons cases. The procedure that is prescribed for recording of evidence in summon case is to be found in Section 274 of the Criminal Procedure Code. The said Section reads as under;

Section 274. Record in summons-cases and inquiries.-(1) In all summons-cases tried before a Magistrate, in all inquiries under Sections 145 - 148 (both inclusive), and in all proceedings u/s 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court:

Provided that if the Magistrate is unable to make such memorandum himself, he shall after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in Open Court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.

It, is therefore clear that in all summons cases tried by a Magistrate, the Magistrate shall as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court. It is therefore, clear from the above procedure prescribed for summons cases that the evidence will have to be recorded before the Magistrate and the Learned Magistrate will have to record the substance of the evidence as examination of each witness proceeds

Thus it is clear from the above procedure prescribed in respect of mode of taking and recording of evidence that the Criminal Procedure Code does not contemplate evidence by way of affidavit. As such, the view taken by the Learned Sessions Judge, cannot be termed as erroneous, but on the other hand, it is in accordance with the procedure prescribed under the Criminal Procedure Code. The ruling referred to by the Learned Counsel for the petitioners does not deal with this aspect of the matter and the question whether evidence by way of affidavit is permissible in the light of the procedure prescribed under Criminal Procedure Code in respect of Section 125 of Criminal Procedure Code proceedings was not considered in the said ruling.

In the result, this revision petition is rejected by concurring with the order of the Learned Sessions Judge.