@ Author,
1. As per S. 60 of the IEA the oral evidence must be direct and there is no specific provision like in S. 145(1) NIA to let in evidence by way of filing proof of affidavit.
2. The evidence includes Chief examination and Cross examination.
3. Evidence on affidavit is not unknown to criminal jurisprudence and similar provisions are found in S. 295 and S. 296 CrPC. Therefore, the evidence of witnesses is as a rule recorded in open court in the presence of the Presiding Officer as seen from S. 274, S. 275 and S. 276 of CrPC. Therefore the rule is that evidence shall be recorded in open court. When evidence is of a formal character then affidavit may be filled and the exact provision under CrPC is under S. 296. Clearly the provisions in the CrPC permitting evidence by affidavit are exceptions.
4. Under S. 28(2) of DV Act, the Court can lay down its own procedure for disposal of an Application under S. 12 or under sub-section (2) of S. 23 of the Act.
5. Procedure followed in DV Act proceedings are as per CrPC. The remedy provided under the DV Act is only a 'civil' remedy.
6. The right to give evidence on affidavit was introduced in the CPC under Order XVIII Rule 4.
7. Though like S. 145(1) NIA in the DV Act it is not specifically stated that the evidence may be given by the witness on affidavit. S. 28(2) DV Act provides for the deviation from the normal procedures as contemplated under the CrPC and explained in details under para 3 above.
8. Under DV Act as per S. 12(5) the Magistrate shall endeavour to dispose of the application made under sub-section (1) within a period of 60 days from the date of its first hearing. As such it is open to the Court in order to reduce the time of consumption for the proceedings the Court may allow the chief examination of the witnesses to be furnished by affidavit which is permissible as per S. 28(2) of DV Act.
9. Thus being respondent to a DV Act Complaint case applicant wife as well as you are one such respective witnesses and your Affidavit Court shall take on record if the Court has accepted applicant wife's affidavit.
10. Hence instruct your local advocate to argue above provision in Law sequentially by placing one after another extracts from above mentioned Sections in Law with explanatory interpretations from respective Bare Acts / Codes accordingly, your purpose to submit Evidence Affidavit shall be taken as material records of the Court. Ask your advocate to do research from Bar Library for extracting copy of local Judgments as he is receiving professional fees.
If not then remedy lies before State's HC under S. 379 and S. 401 of CrPC once Order of dismissal by not taking in your affidavit as material records is announced by the Trail Court.
Every matter does not come under preview of 'natural justice' when there is no bar to admit the same.
[Last reply]
