Gauhati High Court
Rafiqul Hoque Mondal vs The State Of Assam And Anr on 9 November, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/4
GAHC010222832022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl. Pet./1114/2022
RAFIQUL HOQUE MONDAL
S/O GOLAP UDDIN MONDAL
R/O VILL- BANIAMARI PART-I,
P.O. SAHEBGANJ, P.S. GOLAKGANJ
DIST. DHUBRI, ASSAM,
PIN CODE- 783331
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:ABIDA SARKAR @ ABIDA BEGUM
D/O AKTER ALI SARKAR
W/O RAFIQUL HOQUE MONDAL
R/O SOULMARI PART-I
P.O. KACHARIHAT
P.S. DHUBRI
DIST. DHUBRI
ASSAM
Advocate for the Petitioner : MR. B CHOWDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 09-11-2022 Heard Mr. B. Chowdhury, learned counsel for the petitioner and Mr. P. Sarma, learned Additional Public Prosecutor for the respondent State of Assam.
Page No. 2/42. The petitioner has instituted this criminal petition under Section 482, Code of Criminal Procedure, 1973 [CrPC] seeking quashing of the impugned orders, dated 14.07.2022, 03.09.2022 & 11.10.2022, passed by the Court of learned Judicial Magistrate, First Class, Dhubri ['the trial court', for short], whereby, the trial court has issued distress warrants and non-bailable warrants of arrest [NBWA] against the petitioner in connection with C.R. [DV] Case no. 665/2019.
3. It is the case of the petitioner that the marriage between the petitioner and the respondent no. 2, Abida Sarkar @ Abida Begum was solemnized 15 years earlier and out of the wedlock, a girl child was born. Due to differences between the two spouses, the respondent no. 2 filed an application under Section 125, CrPC before the Court of learned Chief Judicial Magistrate, Dhubri seeking maintenance for herself and the minor daughter from the petitioner. The said application was registered and numbered as Misc. Case no. 298/2016. The trial proceeded in the Court of learned Chief Judicial Magistrate, Dhubri. After completion of proceedings of Misc. Case no. 298/2016, the said Court by judgment and order dated 05.05.2017 allowed the application for maintenance and directed the petitioner to pay Rs. 1,000/- per month to the respondent no. 2 and Rs. 800/- per month to the minor daughter towards their maintenance. At a later point of time, the respondent no. 2 preferred an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and the said application was registered and numbered as C.R. [DV] Case no. 665/2019 before the Court of learned Judicial Magistrate, First Class, Dhubri ['the trial court', for short]. On receipt of notice from the learned trial court, the petitioner appeared and contested the case, C.R. [DV] Case no. 665/2019 during the initial stages. But at the later stages, the petitioner stopped appearing in the proceedings of C.R. [DV] Case no. 665/2019 and as a result, the case proceeded ex-parte against him. In the final order dated 17.11.2020, the learned trial court found the petitioner liable for commission of act of domestic violence against the aggrieved persons, that is, the respondent no. 2. The final order dated 17.11.2020 contained a number of directions. One of the directions is to the effect that the petitioner being the husband of the aggrieved person, shall make a monthly payment of total Rs. 2,000/- i.e. Rs. 1,000/- each to the aggrieved person [the respondent no. 2] and the Page No. 3/4 minor daughter towards their maintenance from 17.11.2020 onwards. When the petitioner failed to comply with the said direction, the learned trial court passed the orders dated 14.07.2022, 03.09.2022 and 11.09.2022, assailed in this criminal petition. From the very nature of the orders, it is evident that the learned trial court has been constrained to pass the directions for issuance of distress warrant and non-bailable warrant of arrest [NBWA] against the petitioner for the purpose of executing the direction made in the order dated 17.11.2020.
4. If the petitioner is aggrieved by the final order dated 17.11.2020 passed by the learned trial court i.e. the Court of learned Judicial Magistrate, First Class, Dhubri in C.R. [DV] Case no. 665/2019, which was registered on the basis of the application filed by the respondent no. 2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the remedy in the form of appeal is available to the petitioner under Section 29 of the Protection of Women from Domestic Violence Act, 2005. It is settled legal position that the appellate jurisdiction is coextensive with the original court's jurisdiction and the appellate court can independently appraise and appreciate the evidence and reach findings on facts and own conclusions, without being influenced by any finding reached by the trial court. An appeal is a continuation of the proceedings and therefore, it has the power to review, subject to the limitations prescribed by the statute. The appellate court has the power to modify, alter or reverse the order of the trial court. Instead of preferring the statutory appeal, the petitioner has preferred the instant criminal petition under Section 482, CrPC.
5. This Court is of the considered view that the petitioner should have approached the learned appellate court first. In the case in hand, the petitioner instead of exhausting the statutory remedy of appeal available to him, has approached this Court seeking to invoke the inherent powers of this Court under Section 482, CrPC by instituting the instant criminal petition. It is settled that when a statutory remedy in the form of appeal is available, the inherent powers of this Court available under 482, CrPC is not to be ordinarily exercised. In such view of the matter, this criminal petition preferred under 482, CrPC is not entertained. It is, however, observed that non-entertainment of the instant criminal petition shall not be a bar for the petitioner to avail the statutory remedy of appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005. If the petitioner prefers an Page No. 4/4 application for condonation of delay along with the appeal, the appellate court shall consider the same in accordance with law. The appellate court shall also consider the above orders passed by the learned trial court in the form of distress warrant and non-bailable warrant of arrest [NBWA] on its own merits while entertaining the appeal.
JUDGE Comparing Assistant