Kar HC | No legal basis for Family Courts insisting on personal presence of petitioners at the time of filing cases; Presence of complainant while filing S. 138 NI Act case not necessary

Karnataka High Court: A Division Bench of Abhay Shreeniwas Oka, CJ and S Vishwajith Shetty, J., dealt with the following issues through the present petition:

  • whether the personal presence of the complainant is necessary when a complaint reduced into writing is sought to be filed by him in the Magistrate Court; Other issue in regards to complaints was in the context of Negotiable Instruments Act, 1881.
  • whether examination upon oath of the complainant as contemplated under Section 200 of the Code of Criminal Procedure, 1973 can be done on the basis of an affidavit of the complainant or affidavit of an authorized representative of the complainant.
  • Whether the personal presence of a party who files a proceeding under the Family Courts Act, 1984 is mandatory at the time of filing the proceedings.
  • Another issue that arose was, when a petition for seeking divorce by mutual consent is filed, whether appearance of both the parties before the Family Court at the time of filing the petition is necessary?
  • when summons is issued in the proceedings filed before the Family Court to the defendant/respondent, whether the personal appearance of the defendant/respondent is mandatory.

Bench while relying on the two decisions of Karnataka High Court, Komal S. Padukone v. Principal Judge, ILR 1999 KAR 1866; Cyprian D’Souza v. Rene D’Souza, ILR 2002 KAR5145 ; stated the following:

When a petition is filed to the Family Court, it can be presented by the petitioner either in person or through an authorized agent.

Further the Court observed that,

a petitioner can file a petition in the Family Court through an advocate acting as an authorized agent. In such a case, the personal presence of the petitioner at the time of presentation of the petition cannot be insisted upon.

Th same principle would apply for the respondent as well,

respondent may either appear in person or enter appearance through an advocate in his capacity as an authorized agent. The respondent can also file an application for grant of permission to engage services of an advocate.

Thus, Court held that

“there is no legal basis for the practice adopted by some of the Family Courts in the State when they insist on personal presence of the petitioner or petitioners at the time of filing the cases.”

Issue: Presence of complainant when a complaint in writing is governed by Section 200 CrPC is filed in Judicial Magistrate’s Court.

Court found no provision in CrPC that makes the presence of complainant who files a written complaint mandatory at the time of filing of the complaint in the Magistrate’s Court when the person is represented by an Advocate.

As far as the requirement of the Magistrate examining a complainant on oath in accordance with Section 200 of Cr.P.C is concerned, except in cases governed by clauses (a) and (b) of the proviso to Section 200 and the complaints alleging offences punishable under Section 138 of NI Act, the examination of the complainant upon oath as per Section 200 is mandatory.

As far as the statement of the complainant under Section 200 of CrPC is concerned, Supreme Court’s decision in Indian Bank Assn. v. UOI, (2014) 5 SCC 590, held that the affidavit filed by the complainant along with the complaint for taking cognizance of the offences is good enough at both the stages of pre-summoning and post-summoning.

In case of a complaint alleging offence punishable under Section 138 of NI Act, it is not necessary for the Magistrates to insist upon personal presence of the complainant for examining him upon oath as contemplated by Section 200 of CrPC, if such a complaint is accompanied by an affidavit of the complainant or his authorized representative.

Another issue in the context of COVID-19 was with regard to the judicial deposits and payment of amounts to the litigants:

Court stated that, “while passing an order directing payment of maintenance, it may be possible for the Judicial Officers to take the account details of the person to whom maintenance is payable on record and direct the person liable to pay maintenance to directly transfer the maintenance amount to the account of the beneficiary.”

Registrar (Computers ) has been directed to prepare an exhaustive note dealing with both the legal and technical issues concerning the treasury Rules and one week’s time os granted to file the same.[High Court of Karnataka v. State of Karnataka, 2020 SCC OnLine Kar 543 , decided on 03-06-2020]

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