Allowed

Kiran Bala v. Pardeep & Ors.

Punjab & Haryana HC18 Jul 2012CRM-M/17426/2011

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to challenge an order refusing to recall the petitioner for re-examination. The court held that given the changing matrimonial circumstances involving the birth of a child and the collapse of a compromise, the petitioner's evidence was essential for a just decision.

What did the court decide?

The petition under Section 482 Cr.P.C. and the application under Section 311 Cr.P.C. seeking re-examination of the petitioner were allowed.

Kiran Bala Vs Pardeep & Ors. — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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CRM-M No. 17426 of 2011 (O&M)

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In the High Court of Punjab and Haryana at Chandigarh

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Date of decision: 18.7.2012

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CRM-M No. 17426 of 2011 (O&M)

Kiran Bala

......Petitioner

Versus

Pardeep and others

.......Respondents

CORAM: HON'BLE MRS. JUSTICE SABINA

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Present: Mr.Rajinder Goyal, Advocate, for the petitioner.

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Mr.B.R.Vohra, Advocate, for the respondents.

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Mr.Satyavir Singh Yadav, Addl.A.G.Haryana ****

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SABINA, J.

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The petition has been filed under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short) for quashing/setting aside the order dated 12.1.2010 (Annexure P-3) and for allowing the application filed under Section 311 Cr.P.C. (Annexure P-1) for recalling/ re-examining the petitioner as PW-1.

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Learned counsel for the petitioner has submitted that FIR No.161 dated 25.5.2005 had been got registered by the petitioner against respondents No.1 to 3 under Sections 498-A, 406, 506, 34 of the Indian Penal Code, 1860 (IPC for short) at police station Sadar Bhiwani. The petitioner was examined as a witness on 30.7.2007.

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CRM-M No. 17426 of 2011 (O&M)

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Since a compromise had been effected between the parties, she did not support the prosecution case. The divorce petition filed by respondent No.1 had been dismissed on 12.1.2007. Thereafter, the petitioner and respondent No.1 had started residing together as husband and wife and she gave birth to a child on 14.7.2008. Thereafter, the petitioner was again thrown out of the matrimonial home and thus, the compromise effected between the parties had failed. In these circumstances, it would be necessary for the petitioner to appear in the witness box again and make a statement.

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Learned counsel for respondents No.1 to 3, on the other hand, has submitted that the petitioner could not be allowed to be reexamined as she had deposed of her own free will on 30.7.2007 and had not supported the prosecution case.

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After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed.

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Section 311 Cr.P.C. reads as under:-

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“ Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

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As per the above provision, the Court at any stage of trial

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CRM-M No. 17426 of 2011 (O&M)

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may summon any person as a witness or recall and re-examine any person already examined if it is necessary for the just decision of the case.

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The facts of the present case are peculiar. The petitioner had lodged the FIR in question against respondents No.1 to 3 on 25.5.2005. After completion of investigation and necessary formalities challan was presented against the accused. Admittedly, divorce petition filed by respondent No.1 was dismissed on merits vide judgment and decree dated 12.1.2007. It appears that after the dismissal of the divorce petition a compromise was effected between the parties. In view of the said compromise, the petitioner did not support the prosecution case when she appeared in the witness box on 30.7.2007. Respondent No.1, however, did not want to honour the compromise and preferred an appeal in this Court challenging the judgment and decree dated 12.1.2007, whereby his divorce petition was dismissed. Admittedly, the appeal filed by respondent No.1 in this Court is pending. It is also admitted during the course of arguments that the petitioner had given birth to a child on 14.7.2008 and respondent No.1 was the father of the child.

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Thus, it appears that in view of the compromise effected between the parties, the petitioner had not supported the prosecution case but now again after the birth of a child on 14.7.2008 she had been thrown out of the matrimonial home and is presently residing with her parents.

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In the facts and circumstances of the present case, the re-examination of the petitioner is necessary for the just decision of

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CRM-M No. 17426 of 2011 (O&M)

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the case. Merely because the petitioner had not supported the prosecution case when she was examined as a witness on 30.7.2007 would not be a ground to dismiss the application moved by her for her re-examination under Section 311 Cr.PC. Respondents No.1 to 3 would get an opportunity to cross-examine the petitioner.

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Accordingly, the petition is allowed. Consequently, the application moved by the petitioner seeking her re-examination under Section 311 Cr.P.C. is allowed.

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( SABINA) JUDGE

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July 18, 2012 anita

Kiran Bala v. Pardeep & Ors.

Case brief

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Kiran Bala v. Pardeep & Ors.

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