PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 — Ss. 12, 18, 19, 20, 22, 23 — CODE OF CRIMINAL PROCEDURE, 1973 — Ss. 294, 311 — EVIDENCE — ESCHewING OF EVIDENCE — RECALL OF WITNESS Domestic Violence proceedings — Petition under Ss.294 & 311 CrPC — Eschewing of evidence of aggrieved woman for non-appearance — Recall and reopening of evidence — Permissibility. (Paras 3–5, 14–18)

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PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 — Ss. 12, 18, 19, 20, 22, 23 —
CODE OF CRIMINAL PROCEDURE, 1973 — Ss. 294, 311 —
EVIDENCE — ESCHewING OF EVIDENCE — RECALL OF WITNESS

Domestic Violence proceedings — Petition under Ss.294 & 311 CrPC — Eschewing of evidence of aggrieved woman for non-appearance — Recall and reopening of evidence — Permissibility.
(Paras 3–5, 14–18)

Power under S.311 CrPC — Scope — No prohibition to recall witness whose evidence was earlier eschewed — Test is whether evidence sought is essential for just decision — Delay by itself not decisive.
(Paras 15–17)

Aggrieved woman residing abroad — Inability to appear due to visa and employment issues — Non-appearance not willful — Magistrate erred in eschewing evidence and rejecting recall petitions.
(Paras 11, 18, 20)

Procedure — S.294 CrPC — Marking of documents — Court to consider relevance and necessity — Mechanical rejection unsustainable.
(Paras 4, 14, 20)

Orders of Magistrate — Dismissal of petitions solely on ground of delay — Held unsustainable — Orders set aside — Opportunity to lead evidence directed.
(Paras 20–21)

Domestic Violence Act — S.12(5) — Mandate of expeditious disposal within 60 days — Magistrate directed to conclude proceedings expeditiously.
(Para 22)

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ANALYSIS OF FACTS

1. The petitioner filed D.V.C. No.7 of 2018 under Section 12 read with Sections 18, 19, 20, 22 and 23 of the DV Act seeking multiple reliefs. (Para 3)

2. During trial, her chief-examination affidavit was filed through her Special Power of Attorney holder, as she was residing in the USA on a student visa. (Paras 6, 10–11)

3. Due to her absence, the trial court eschewed her evidence on 14-11-2018. (Para 18)

4. Subsequently, she filed:

   • Crl.M.P. No.2139 of 2019 under Section 294 CrPC to mark documents; and

   • Crl.M.P. No.2140 of 2019 under Section 311 CrPC to reopen and recall herself as PW-1. (Paras 4–5)

5. Both petitions were dismissed by the Magistrate on the ground of delay of 385 days. (Paras 5, 7)

6. Aggrieved, the petitioner approached the High Court seeking quashment of both orders. (Para 1)

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ANALYSIS OF LAW

1. Section 311 CrPC confers wide power on the Court to recall or re-examine a witness at any stage if the evidence appears essential for a just decision. There is no bar to recall a witness whose evidence was earlier eschewed. (Paras 15–17)

2. The decisive consideration is necessity for just adjudication, not mere delay or procedural technicalities. (Paras 16–17)

3. The petitioner’s absence was explained by bona fide reasons — residence abroad, visa restrictions and employment issues — and was neither wanton nor willful. (Paras 11, 18)

4. The Magistrate committed error in eschewing the evidence after having accepted the affidavit and in rejecting recall applications solely on the ground of delay. (Paras 18, 20)

5. Section 294 CrPC permits marking of documents where genuineness is not disputed; rejection without proper consideration of relevance and necessity is unsustainable. (Paras 14, 20)

6. The mandate under Section 12(5) of the DV Act requires disposal within 60 days, and unnecessary adjournments defeat the object of the Act. (Para 22)

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RATIO DECIDENDI

In proceedings under the Protection of Women from Domestic Violence Act, 2005, there is no prohibition on recalling a witness whose evidence was earlier eschewed; while considering an application under Section 311 CrPC, the determinative factor is whether the evidence sought to be adduced is essential for a just decision, and bona fide inability of an aggrieved woman to appear due to residence abroad cannot be treated as willful default; rejection of recall and document-marking applications solely on the ground of delay is unsustainable.