Jagdish Prasad vs 4th Addl. Sessions Judge And Ors.
Allahabad High Court
C.M.W.P.
21600/1994, decided on 13.02.1995
4. Learned Counsel for the petitioner has contended that the impugned order of maintenance passed by the learned Magistrate was illegal on the ground that the procedure prescribed by Section 126 Cr.P.C. was not followed and instead, the affidavit which was not an evidence was accepted and relied upon as evidence and the order of maintenance could not have been passed in view of the decree of the Civil Court for restitution of conjugal rights. Learned Counsel for the contesting respondent No. 3 has replied that the impugned orders do not suffer from such illegalities as contended.
5. As regards the contention relating to the failure of the Magistrate to observe the prescribed procedure, the relevant provision is contained in Sub- section (2) of Section 126 of the Code which reads as follows :
“126…..
(2) All evidence in 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.”
6. It is apparent from this provision that in the proceedings under Section 125 Cr.P.C. the manner of recording the evidence in the presence of the opposite party or of his pleader will be the same as prescribed for summons cases. Section 254 of the Code of Criminal Procedure provides that the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It further provides that the Magistrate may if he thinks fit, on the application of the prosecution or the accused issue a summons to any witness directing him to attend or to produce any document or other thing. It further provides that the reasonable expenses of the witness incurred in attending for the purposes of the trial may be got deposited in the Court before summoning of the witness. Section 274 requires the Magistrate to make a memorandum of the substance of the evidence of each witness as the examination proceeds in the language of the Court, and if he is unable to do so he may cause such memorandum to be made in writing or from his dictation in open Court and sign the memorandum which shall form part of the record. It simply provides that the Magistrate shall record all such evidence as may be produced by the prosecution as well as by the accused. All this procedure can be adopted when the opposite party in the proceedings under Section 125 Cr.P.C. is either personally present or represented by his pleader. But if the opposite party absents himself and no pleader appears on his behalf, the manner for recording of the evidence as required for summons cases need not be resorted to. In the ex-parte proceedings, the Magistrate under the proviso to Sub-section (2) has to satisfy himself that the opposite party is wilfully avoiding service and wilfully neglecting to attend the Court. On his satisfaction the Magistrate may proceed to hear and determine the case ex-parte. In such ex-parte proceed ings the Magistrate has got the discretion either to record the statement of the applicant and the witness on oath or direct or permit them to file affidavits before the Court. There is no illegality if the learned Magistrate either directs or permits the applicant or any witness to file an affidavit in proof of the facts contained in the application under Section 125 Cr.P.C. If the opposite party appears he can have the right of cross examination of the deponent in respect of the averments made in the affidavit. But if he does not appear, there is no illegality in relying upon the affidavit as the evidence.
7. As regards the contention that an affidavit is not an evidence, the learned Counsel for the petitioner cited a decision of the Hon’ble Supreme Court in the case Smt. Sudha Devi v. M.P. Narayanan, 1988 Rent Cases 316 (S.C. Full Bench). In this case an affidavit was filed before the Supreme Court by way of evidence. It was held that such an affidavit cannot be allowed to be filed for filling up the lacunae. It was further observed that an affidavit is not an evidence within the meaning of Section 3 of the Evidence Act, 1872 unless for reasons Court passes an order under Order XIX Rules 1 and 2 C.P.C. This was a special appeal under decision of the Hon’ble Supreme Court against an ex-parte decree. An affidavit was filed in order to fill up the lacunae withoutany direction or permission of the Court. It was a civil matter governed by the procedure of the Code of Civil Procedure. An affidavit by itself does not become an evidence within the meaning of Section 3 of the Indian Evidence Act. However the Court has been given power either to permit or call for an affidavit by way of evidence.
8. Section 3 of the Indian Evidence Act defines the word ‘evidence’ as follows:
“Evidence” : “Evidence” means and includes-
(1) All statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.
9. Affidavit is a statement of a person either on oath or on affirmation. If the Court permits such a statement to be given by a witness in relation to matters of fact under enquiry, such a statement is called oral evidence. The Court has also got powers under Order XIX C.P.C. in civil matters to direct a witness to file an affidavit in relation to matters of fact under inquiry. In criminal proceedings also, the Code of Criminal Procedure empowers the Court to require a witness to file an affidavit in relation to matters of fact under inquiry. Sections 295 and 296 of the Cr.P.C empower the Court in the course of inquiry, trial or other proceeding under the Code requiring evidence of the facts to be given by an affidavit. Section 296 gives the general power to the Court with the rider that if an application is given by the prosecution or the accused, the Court shall summon and examine any such person as to the facts contained in his affidavit. Being thus empowered by law the Court has got the discretion either to permit or require a witness to file an affidavit in relation to matters of facts under inquiry, trial or other proceedings. In case the Court neither requires nor permits by any specific order expressly recorded, but actually receives an affidavit of a party or a witness as an evidence in a proceeding, the Court is deemed to have exercised its discretion impliedly. It is still in the discretion of the Court either to rely upon or reject an affidavit submitted as an evidence by way of proof of the matters of fact under inquiry, trial or proceeding. This position would be evident from a perusal of the proceedings and the judgments of the Court whether any permission or the direction was given expressly to file an affidavit or the affidavit was accepted impliedly as an evidence and it was relied upon or rejected. In ex-parte proceed ings the Court generally permits or directs party concerned or his witness to file an affidavit as evidence to prove the facts contained in the application or the petition and proceeds to decide the matter on that basis, obviously because the other party has been absenting or is not available to challenge the facts contained in the affidavit made on oath or affirmation, and, even if the opposite party appears at a later stage, he has got an opportunity for cross examining the deponent on his application to the Court. In this procedure also the interest of justice is well protected and the valuable time of the Court, which could have been otherwise wasted in the recording of evidence or memorandum of the evidence of the applicant or the petitioner, and/or the witnesses, would be saved and would be utilised for hearing of other matters awaiting their turn.
10. The proviso to Sub-section (2) of Section 126 makes an exception to the Sub-section (2) and does not oblige the Magistrate to record the evidence in the manner prescribed for summons cases; in view of the special situation that the opposite party has been absenting, neglecting or wilfully avoiding participation in the case. Therefore, an affidavit in such ex-parte proceedings by way of evidence is permissible in law. The learned Counsel for the petitioner has submitted that the evidence of the applicant or of any witness in proceedings under Section 125 Cr.P.C. cannot be treated as evidence of formal character under Section 296 of the Code. The question whether the eivdence is of formal character or not has to be answered on the basis of facts and circumstances of each case. Even this Section 296 of the code which permits the evidence of a person whose evidence is of formal character by affidavit, makes it subject to all just exceptions for being read in evidence in any inquiry, trial or other proceedings under this Code. Besides just exceptions, Sub-section (2)of Section 296 itself provides that the Court shall on the application of the prosecution or the accused summon and examine any such person as to the facts contained in his affidavit. Section 297 which specifies the authorities before whom affidavits can be sworn or affirmed also provides that the affidavits shall be confined to and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. Sub-section (3) or Section 297 empowers the Court to order any scandalous and irrelevant matter in the affidavit to be struck out or amended. In ex-parte proceedings where the other party has been absenting or neglecting or avoiding wilfully participation in the proceedings, the evidence required from the applicant to prove the facts contained in the application becomes a formality. Even if the affidavit is not permitted, the Court shall record only examination in chief on oath or affirmation of the applicant, or and the witnesses, in a mechanical manner as the other party is not present and no cross examination is called for. If in this circumstance, the Court exercising its discretionary power in the interest of speedy disposal receives an affidavit of the applicant or the witness by way of evidence in proof of the matters of fact contained in the application it does not contravene any specific provision of law or defeat the advancement of interest of justice. Therefore, in my opinion the evidence in ex-parte proceedings becomes a matter of formality to be observed by the applicant. If the Court permits or directs the applicant or the witnesses expressly or impliedly or even receives affidavits in proof of facts contained in the application there is no illegality.
