Dharam Veer vs Smt. Santosh Devi

Madan Mohan Punchhi, J.—A divorce petition is pending between the parties in the Court of District Judge, Karnal. The Respondent-wife is the Petitioner therein.

To support her case, the Respondent wife examined her father Lakhpat as PW5 and her maternal uncle Mewa Singh as PW6. The husband-Petitioner had avowedly in mind to cross-examine these witnesses by confronting them with their statements u/s 161, Code of Criminal Procedure, recorded by the police on 10.1.1985, relating to an occurrence which took place on 2.1.1985, subject matter of an F.I.R. According to the Petitioner''s learned Counsel, the Court had not permitted the P Ws to be confronted with their police statements on the day of their examination but had advised an application to be made for the purpose. Farther, according to the Petitioner, such an application was moved on 7.2.1986 to recall those witnesses for cross-examination. The Court at one juncture, on 27.2.1286 assumed them to have been called at as defence witnesses but, on an objection taken, disposed of the application on the adjourned date, i.e., 7.3.1986, holding that the Petitioner had earlier an opportunity of confronting these witnesses while they had made statements in Court. It is against this order that the revision petition has been filed.

It prima facie appears that it would need decision whether statements u/s 161, Code of Criminal Procedure, recorded by the police in an investigation can be made use of at a civil trial for contradicting witnesses. It appears that the Court below did not think it necessary to go into this question but rather dismissed the application of the husband-Petitioner on account of delay and latches, for these statements, which were placed on record earlier, could well have been used for cross-examining the witnesses when they were in the witness-box. The Petitioner''s learned Counsel is at pains to contend that law permitted such cross-examination and the learned District Judge has by-passed the issue by bringing to the fore the question of delay and latches.

I have heard the learned Counsel for the parties at length. The frame of the order per se suggests that the learned District Judge was solely influenced by the ground of delay and latches. He has even observed that the existence of those police statements on the file was to the knowledge of the Petitioner and he could have made use of them when those witnesses were in the witness-box, and the Petitioner, at that time, had full opportunity to cross-examine them. This view of the learned Judge cannot be found fault with as arrival to it was within his discretion. And, if that is so, the allied latent question whether such a course would be legally permissible is out of the way. No opinion need be expressed thereon.

For the forgoing reasons, this petition fails and is dismissed with no order as to costs.