TaxTMI 
TaxTMI 
2015 (4) TMI 1320
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....al injury. The present dispute pertains to an order, by which, the learned Magistrate has allowed the applications filed by the respondent /husband, thereby issuing summons, asking the two sons, namely Scott Leclerc and Brett Leclerc to remain present as witnesses on behalf of the respondent. It appears that on account of a matrimonial dispute between the parties, the petitioner has filed an application on 23/01/2012 under the Protection of Women from Domestic Violence Act, 2005 (the Act, for short) before the learned Magistrate, Mapusa for various reliefs. It is the material grievance of the petitioner that the respondent was indulging into acts of domestic violence. It is claimed that on certain occasions, the respondent had even assaulted the two sons, namely Scott Leclerc and Brett Leclerc in public place. It appears that, after the petitioner closed her side of the evidence, the respondent examined one Mark Anthony, an official from the Consulate as his witness. This was on 25/06/2014. The respondent is staying in France. It appears that subsequently, on 04/07/2014 and 09/07/2014, there was no appearance on behalf of the respondent. Hence, the learned Magistrate closed the evi....
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....itness for the respondent. The respondent shall deposit bhatta charges of Rs. 200/- each and shall pray process fees within a period of two days." 9. Feeling aggrieved, the petitioner filed Criminal Appeal No. 145/2014 before the learned Additional Sessions Judge, Mapusa. The learned Additional Sessions Judge, by a judgment and order dated 05/02/2015, has dismissed the appeal. The learned Sessions Judge was of the view that in order to elucidate the truth, the examination of the sons is necessary. The learned Sessions Judge also negatived the submission that the witness summons cannot be issued, unless the respondent steps into the witness box. Feeling aggrieved by the same, the petitioner has approached this Court. 10. I have heard Shri Lobo, the learned Counsel for the petitioner and Shri Rao, the learned Counsel for the respondent. With the assistance of the learned Counsel, I have perused the record and the impugned orders passed. 11. It is submitted on behalf of the petitioner that the respondent is not facing any trial as such, before the learned Magistrate and thus the provisions of Section 311 of Cr.P.C. were not attracted. It is next submitted that even assuming t....
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....e for disposal of an application under Section 12 of the Act. It is thus submitted that the learned Magistrate was justified in issuing summons to the two sons and in the absence of any prohibition pointed out in this regard, no exception can be taken to the same. It is also submitted that the impugned order would not be rendered vulnerable only on the ground that the respondent has not yet examined himself. It is submitted that nothing prevents the learned Magistrate from permitting the witnesses to be examined before the party itself enters into the witness box. The learned Counsel also submitted that the petitioner has not demonstrated any prejudice, whatsoever by examination of the two witnesses. The learned Counsel also submitted that the fact that the petitioner is opposing the two sons to be examined, shows that she is not interested in bringing the truth to the fore. The learned Counsel also submitted that the impugned order passed by the learned Magistrate would be in the nature of interlocutory order, which will not be amenable to the revisional jurisdiction of this Court, in view of the bar contained under Section 397(2) of Cr.P.C. He, therefore, submitted that the Revis....
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....d another Vs. Radhika Gupta and another in Criminal Writ Petition Nos. 70 and 76 of 2010, which inter alia holds that the provisions of the Act are mainly made for giving relief to the affected woman. The respondent in such a case is not an accused, until he commits breach of an order passed by the Court, under the provisions of the Act. Thus, it would appear that the substantive proceedings under the Act are essentially of a civil nature. The perusal of the order passed by the learned Magistrate would also show that the Magistrate has noticed that the proceedings are civil in nature and it is only the disobedience of the protection order that the proceedings assume a criminal overtone. 16. A brief reference to the provisions of Section 28 of the Act would be necessary at this stage, which read as under: "28. Procedure - (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section....
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....ted by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court." 19. Thus, the order, in which the witnesses are produced and examined, has to be regulated by the law and practice for the time being relating to Civil and Criminal Procedure respectively and in the absence of any such law, by the discretion of the Court. The impugned order can now be tested both on account of the proceedings being in the nature of civil proceedings and/or on the basis of Section 311 of Cr.P.C., under which the applications were purportedly filed by the respondent. So far as the civil proceedings are concerned, Order XVIII, Rule 3A which is relevant for the purpose, reads as under: "3-A. Party to appear before other witnesses. - Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage." 20. Thus, it can be seen that where a party himself wishes to appear as witness, he shall so appear before any other witness on h....