Calcutta High Court (Appellete Side)
Rahima Bibi vs Unknown on 13 January, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1
13.01.2011
(10) mb C.R.R. 517of
2008
In re : An application under Sections 397/401 read with
Section 482 of the Code of Criminal Procedure filed on
18th February, 2008
And
In the matter of : Rahima Bibi
Mr. Rabi Shankar Chattopadhyay,
Mr. Uday Shankar Chattopadhyay ..................for the
petitioner
Mr. Swapan Kumar Mallick.............................for the O.P.
Mr. Uday Shankar Chattopadhyay, learned
advocate appearing on behalf of the petitioner, files
affidavit of service together with copy of notice sought to
be served upon the State of West Bengal as well as Abdul
Odud despatched by registered post on 30.7.2008. Let the
same be kept with the record.
Heard Mr. Chattopadhyay, learned advocate for the
petitioner and Mr. Mallick, learned advocate appearing for
the State.
The petitioner herein, Rahima Bibi, initiated a
criminal action long back in the year 1984 under Section
125 of the Code of Criminal Procedure against the O.P. no.
1, Abdul Odud, which was registered as M.R. Case No.
147 of 1984. Thereafter, the O.P. no. 1 given her Talak.
Ultimately, the award, granted in favour of the present
petitioner, was put in execution as the O.P. no. 1, as her
2
husband, could not comply with the direction of Court to
pay maintenance. A distress warrant was issued against
him. Chased by the distress warrant, the O.P. no. 1
proposed the petitioner that he would remarry her and
allow her to stay with him as his wife in case she
withdraws the proceedings. He also proposed that he
would gift some landed properties to the petitioner in
order to secure her future maintenance. A compromise
petition was filed to that effect and, as a consequence,
that maintenance proceeding was withdrawn. Before the
proceeding was withdrawn on compromise, the O.P. no. 1,
however, remarried the petitioner and executed a Deed of
Gift in respect of 16½ decimals of land on 5th August,
1991. The moment the proceeding was withdrawn on
compromise, the O.P. no. 1 had gone to his second wife
leaving the petitioner alone and informed her in writing
that he has given her Talak. In order to maintain herself,
the petitioner had gone to the landed property, which was
gifted to her by the O.P. no. 1 on 5th August, 1991, but
found that the said land was already transferred by the
O.P. no. 1 on 29.7.1991 in favour of his second wife.
The petitioner felt dejected and defrauded. She
relying on the action taken by the O.P. no. 1, withdrew the
maintenance proceeding, which was in her favour, and
acknowledged the gift treating the same to be a genuine
one. She did not find place in her matrimonial house.
She did not get any maintenance, whatsoever, from the
3
O.P. no. 1. She, finding no alternative, knocked at the
doors of the Court and filed a petition of complaint under
Sections 417/420 of the Indian Penal Code against the
O.P. no. 1, which was registered as C.R. Case No. 58-A of
1992 in the Court of learned Sub-Divisional Judicial
Magistrate, Lalbagh. The case was, ultimately, tried by
the learned Judicial Magistrate, 1st Class, Additional
Court, Lalbagh, Murshidabad. Upon considering the
evidence recorded in course of trial, the learned Magistrate
found the O.P. no. 1 guilty of offence under Section 417 of
the Indian Penal Code and convicted him. He sentenced
him to suffer rigorous imprisonment for six months and
directed him to pay a compensation of Rs. 20,000/- to the
present petitioner under Section 357(3) of the Code of
Criminal Procedure.
The O.P. no. 1 challenged the judgment passed by
the learned Magistrate in appeal, which was registered as
Criminal Appeal No.
5/03/4/03. The appeal was heard by the learned Additional Sessions Judge, 1st Fast Track Court, Lalbagh and by a judgment dated 28.9.2007 found the order of conviction and sentence passed by the learned Trial Court justified. He affirmed that order but, set aside the order in respect of payment of compensation of Rs.20,000/- by the convict/petitioner to the complainant.
The petitioner herein has challenged the legality and validity and propriety of that portion of the 4 order passed in the Criminal Appeal No. 5/03/4/03 on 28.9.2007 by the learned Assistant Sessions Judge, 1st Fast Track Court, Lalbagh on the following grounds:
a) The learned Appellate Court erred in setting aside the order of compensation passed by the learned Trial Court specially when the order of conviction and sentence passed by the learned Trial Court was affirmed;
b) that the learned Trial Court was oblivious of the legal position that in a case where the accused is found guilty and convicted and only sentence of imprisonment is recorded, a Trial Court is empowered under sub-section (3) of Section 257 of the Code of Criminal Procedure to direct payment of compensation to a party to the case in an appropriate case;
c) that the order of the learned Appellant Court setting aside the order of compensation was passed without assigning any reason and is liable to be set aside and the order of the learned Magistrate is to be restored.
Mr. Chattopadhyay, learned advocate appearing for the petitioner, submits that the learned Trial Court as well as the learned Appellate Court elaborately discussed the factual aspects of the case and both of them have taken a concurrent view that the O.P. no. 1 committed the offence under Section 417 of the Indian Penal Code by deceitful act, which prompted the petitioner to withdraw the maintenance proceeding. The Heba Deed executed by the O.P. no. 1 in favour of the petitioner on 5th August, 1991 5 had no legal force because on that date the O.P. no. 1 had not right, title and interest in that property because of transfer of the same by him to his second wife by a registered deed on 29.7.1991. Mr. Chattopadhyay submits further that the O.P. no. 1 being aware of that fact, that he executed a Heba Deed in favour of the petitioner whereby the petitioner did not get right, title and interest in the property as well as the possession over the same. He knew that action on his part would prompt the petitioner to withdraw the maintenance proceeding. He remarried her but immediately after withdrawal of the maintenance proceeding, he had given her Talak. Everything was pre-planned and for getting rid of the legal problem he was facing because of issuance of distress warrant.
Both the learned Trial Court as well as the learned Appellate Court accepted the case of the petitioner. The case is sufficiently proved by the petitioner and the offence committed by the O.P. no. 1 is well within the meaning of Section 415 of the Indian Penal Code punishable under Section 417 of the Indian Penal Code. There is concurrence finding of facts and that has not been challenged as yet by the O.P. no. 1.
On perusal of the order impugned I noticed that no reason, whatsoever, has been assigned by the learned Appellate Court as to why he set aside the order of compensation.
6
The learned Trial Court as well as the learned Appellate Court found that the action on the part of the O.P. no. 1 was deceitful and thereby the petitioner suffered mental and monetary loss. There cannot be any argument over the issue that she suffered monetary loss because had to withdraw the maintenance case, which was awarded in her favour, because of deceitful act of the O.P. no. 1. The property was transferred to her by a fake deed. The fake deed was executed by the O.P. no. 1 in her favour knowing fully well that she would never acquire right, title and interest in that property and possession over the same. He remarried her but again given Talak. All those actions together on the part of the O.P. no. 1 caused the petitioner mental, social and monetary loss. Under Section 357(3) of the Code a Magistrate can award compensation in an appropriate case like this.
Mr. Mallick, learned advocate appearing on behalf of the State of West Bengal, fairly concedes to the submission of Mr. Chattopadhyay and submits that the order impugned appears to be bad and not in consonance with the observation made in the body of the judgment. This apart, he submits that no reason has been assigned by the learned Appellate Court as to why order of compensation was set aside.
Mr. Chattopadhyay, to draw support of his contention, refers to a decision of the Hon'ble Apex Court in Manish Jalan vs. State of Karnataka, reported in (2008) 7 3 SCC (Cri) 456. In that case the Hon'ble Apex Court, in fact, discussed about the quantum of compensation is to be awarded. It was opined by the Hon'ble Apex Court that if the case is a fit one in which compensation deserves to be awarded, it is necessary for the Court to award compensation and quantum of compensation is to be determined by taking into consideration the nature of crime, injury suffered and the capacity of the convict to pay compensation, etc. It has further been observed by the Hon'ble Apex Court that the amount of compensation should be reasonable.
It is true that the learned Trial Court has not considered the financial capacity of the O.P. no. 1. but from the record it is clear that the O.P. no. 1 is a man, who can afford two wives at two different places. The deceitful act on his part cannot be approved in any manner. He has not maintained his first wife, i.e., the petitioner and is dragging the entire matter and all litigations since 1990. All these facts together indicates that he is capable of paying Rs. 20,000/-, in lump, to the petitioner as compensation.
The order passed by the learned Appellate Court, in the facts and circumstances above, requires interference in this revisional application. It is set aside. The revisional application is allowed. The order of the learned Magistrate regarding payment of compensation of Rs.20,000/- by the O.P. no. 1 to the petitioner is affirmed. 8 The learned Trial Court is to take up the matter without fail so that the petitioner gets compensation without further sufferings.
This revisional application is disposed of accordingly.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the appearing parties on the usual undertaking.
(Kanchan Chakraborty, J)