Court No. - 13 Case :- U/S 482/378/407 No. - 4827 of 2009 Petitioner :- Mohd. Anees Respondent :- State Of U.P. & Another Petitioner Counsel :- Sharad Pathak Respondent Counsel :- Govt. Advocate Hon'ble Yogendra Kumar Sangal,J.
Heard learned counsel for the applicant, learned A.D.A and
perused the record.
In a proceeding under section 125 Cr.P.C after the evidence of
the wife , respondent no. 2 , case was fixed for evidence of the
applicant Mohd. Anees. He had examined himself as O.P.No., 1, at
this stage he had moved an application to summon three
witnesses. One witness from his company to show that he was on
medical leave and also to prove his income, another witness is
doctor to show that he was bed ridden on the date when it is said
that respondent was ousted from her matrimonial house after
giving beating to her and third witness is post master to prove
postal receipt.Trial court has rejected this application. Aggrieved
by the order of the trial court , revision No. 308 of 2009 Mohd.
Anees Vs. State was filed . The revisional court has allowed the
revision partly and directed the applicant to examine Sri Vrijendra
Tewari and also given reason why the evidence of post master is
not necessary in the matter. Revisional court also rejected the
prayer for examination of the doctor.
Learned counsel for applicant challenged the order of the courts
below only on this ground that he wants to bring on record that he
was in hospital when it is said that respondent no. 2 was ousted
from the matrimonial house. Learned A.g.A argued that it is not
an important fact to be decided in proceedings under section 125
Cr.P.C.It is only to be seen in these proceedings whether having
sufficient means, the petitioner has neglected his wife and has not
paid the maintenance allowance to her.
Learned counsel for petitioner prays to produce doctor Amit
Gupta only to show that he was in hospital on 9.10.2006 when it
is said that she was beaten by the petitioner and ousted from her
matrimonial house.
Learned A.G.A has drawn my attention to the copy of the written
statement filed by the petitioner in the trial court while there are
no such averment in the petition that on 9.10.2006 he was
admitted in the hospital and unable to move . It is correct that the
right of defence couesel and for that purpose to adduce evidence
is recognized under section 243 (2) Cr.P.C . It is also settled law
that what should be the nature of of evidence is not a matter
which should be left only to the discretion of the court. It is the
accused who knows how to prove his defence as laid down by the
apex court in the matter of T.N.Gappa vS. Y.R. Murlidhar
reported in 2008 (1) ( ACR) S.C. 425 , but the fact of the case
before the apex court were totally different from the facts of the
present case. There is no specific case of the applicant petitioner
in his written statement that on 9.10.2006 he was unable to move
and was hospitalized and the case of ousting of the respondent
no. 2 from the house on that date is totally false. More over after
sufficient reasons and by a detailed order, the revisional court has
granted permission to the applicant to examine one witness Sri
Vrijendra Tewari and it was found that there is no need to examine
the doctor in the matter. Trial court held that only to delay the
disposal of the matter, this summoning prayer has been made .
Seeing the circumstances of the case , I do not find any ground to
interfere in the order of the courts below.No interference under
section 482 Cr.P.C is required in the matter.
The application is dismissed.
Order Date :- 19.1.2010
R.P/