The High Court considered a petition seeking to set aside an order allowing the respondent to summon additional witnesses in a Section 498A case during pending proceedings under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986.
The impugned order allowing the respondent to receive an additional witness list and issue summons was set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
OP(CRL.) NO. 22 OF 2021
AGAINST THE ORDER/JUDGMENT IN CMP 16077/2019 IN MC 93/2015 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM
PETITIONER/PETITIONER:
DR. RAZEENA ALI, AGED 33 YEARS D/O. HAMSATH ALI, ARATHODI VEEDU, PATHIRIPPALA, OTTAPALAM TALUK, PATHIRIPPALA AMSOM, PERUR DESOM AND P.O, PALAKKAD DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER AND FATHER, HAMSATH ALI, S/O. SULAIMAN, AGED 66 YEARS, RESIDING IN THE ABOVE ADDRESS. BY ADVS. K.MOHANAKANNAN SRI.P.T.SHAHUL HAMEED
RESPONDENT/RESPONDENT:
JUBEESH, AGED 41 YEARS S/O. ISMAIL, 3/330, SAHYADRI COLONY, CHANDRA NAGAR, PALAKKAD678 007 BY ADV NIREESH MATHEW
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 23.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(CRL.)No.22 OF 2021
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JUDGMENT
This petition has been filed by the petitioner, who is also the petitioner in O.P.(Crl.)No.63/2021, seeking to quash Ext.P5 order dated 04.01.2021 in CMP No.16077/2019 in M.C.No.93/2015 of the Judicial Magistrate of First Class-I, Ottapalam.
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O.P.(CRL.)No.22 OF 2021
of Criminal Procedure, 1973 can be used only to prove the contradictions and/or omissions. V.K. Mishra & Ors. v. State of Uttarakhand & Ors. [2015 ICO 1878 : AIR 2015 SC 3043] was also placed reliance by the learned counsel. But in paragraph No.15 of the said decision it has been held that Section 162 Cr.P.C. bars use of statements of witnesses recorded by the police except for the limited purpose of contradiction of such witness as indicated in Section 162 Cr.P.C.
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
PROVIDED that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to
O.P.(CRL.)No.22 OF 2021
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contradict such witness in the manner provided by section 145of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation: An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”
So on going through the above Section, it is very clear that the statements u/s.162 Cr.P.C can be used only with respect to the offence under investigation [See. Vinay D Nagar v. State of Rajasthan [(2008) 5 SCC 597 : 2008 Cr.L.J 1907; James v. State of Kerala [1995 Cr.L.J 55 : 1995 KHC 477].
O.P.(CRL.)No.22 OF 2021
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quoting a decision which has no application at all also not proper.
O.P.(CRL.)No.22 OF 2021
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8. Accordingly, this O.P.(Crl.) is allowed and the
impugned Ext.P5 order is set aside.
Sd/-
M.R.ANITHA JUDGE
shg/
O.P.(CRL.)No.22 OF 2021
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| APPENDIX OF OP(CRL.) 22/2021 | |
|---|---|
| PETITIONER EXHIBITS | |
| EXHIBIT P1 | TRUE COPY OF THE APPLICATION CMP 16077/2019 DATED 10.12.2019 IN MC 93/2015. |
| EXHIBIT P2 | TRUE COPY OF THE COUNTER IN CMP 16077/2019 DATED 4.1.2020 FILED BY THE PETITIONER. |
| EXHIBIT P3 | TRUE COPY OF THE PROCEEDINGS IN CMP 16077/2019 IN MC 93/2015 OF JUDICIAL FIRST CLASS MAGISTRATE 1, OTTAPALAM. |
| EXHIBIT P4 | TRUE COPY OF THE JUDGMENT DATED 5.10.2020 IN OP(CRL) 276/2020 |
| EXHIBIT P5 | TRUE COPY OF THE ORDER IN CMP NO. 16077/2019 IN MC 93/2015 DATED 4.1.2021. |
| EXHIBIT P6 | TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENT ON 5.1.2021 IN MC 93/2015. |
| EXHIBIT P7 | TRUE COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENTS ON 5.1.2021 IN MC 93/2015 |
| EXHIBIT P8 | TRUE COPY OF THE OBJECTION DATED 13.1.2021 FILED BY THE PETITIONER TO EXT. P6 INTERLOCUTORY APPLICATION. |
| EXHIBIT P9 | TRUE COPY OF THE OBJECTION DATED 13.1.2021 FILED BY |
| THE PETITIONER TO EXT. P7 INTERLOCUTORY APPLICATION. |
2 issues framed by the court
Whether Section 162 Cr.P.C. excerpts of statements recorded 498A IPC lineage proceedings can be relied upon in proceedings under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 198
Whether a request to summon additional witnesses in proceedings under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986 is necessary given the pending summary and summary nature
Colour shows how this judgement treated each authority
Parvat Singh v. State of Madhya PradeshReferred¶19
Parvat Singh v. State of Madhya Pradesh [2020 ICO 447 : 2020 (2) KLJ 534]
V.K. Mishra & Ors. v. State of Uttarakhand & Ors.Referred¶22
V.K. Mishra & Ors. v. State of Uttarakhand & Ors. [2015 ICO 1878 : AIR 2015 SC 3043] · Who else cites this
Vinay D Nagar v. State of RajasthanReferred¶32
Vinay D Nagar v. State of Rajasthan [(2008) 5 SCC 597 : 2008 Cr.L.J 1907] · Who else cites this
James v. State of KeralaReferred¶32
James v. State of Kerala [1995 Cr.L.J 55 : 1995 KHC 477]
5 provisions across 3 enactments
DR. RAZEENA ALI
JUBEESH
M.R.ANITHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
