Tripura High Court
Smt.Paramita Poddar vs Shri Banti Roy Chowdhury on 19 November, 2021
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
1
HIGH COURT OF TRIPURA
AGARTALA
Crl.Rev.P.No. 57 of 2017
Smt.Paramita Poddar, wife of Shri Banti Roy Chowdhury, D/O
Shri Pradip Poddar of Subhash Palli, North Badharghat P.O.-
A.D.Nagar, P.S.East Agartala Dist.West Tripura
-------Petitioner(s)
Versus
1. Shri Banti Roy Chowdhury, S/O Shri Swapan Roy
Chowdhury
2. Smt. Manjula Roy Chowdhury W/O Sri Swapan Roy
Chowdhury both are resident of Gangail Road, Town Pratapgarh,
Agartala P.S- West Agartala, West Tripura
3. Smt.Shilpi Roy Chowdhury, W/OShri Biswajit Saha@Buro
of Mastarpara P.S-West Agartala, Dist.West Tripura
-------Respondent(s)
4. The State of Tripura
------Proforma Respondent.
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For Petitioner(s) : Ms. S.Deb, Adv
For Respondent(s) : Mr. P.K.Pal, Adv.
Mr. Ratan Datta, PP.
Ms.A.Debbarma, Legal Aid Counsel
ORDER
19.11.2021 [1] This Criminal Revision Petition is directed against the impugned order dated 16.05.2017 passed by the Addl. Sessions Judge, (Court No.5), Agartala, West Tripura Judicial District in 2 Criminal Appeal No.109 of 2016 affirming the order dated 11.11.2016 passed by the Judicial Magistrate, First Class(Court No.4) Agartala, in case No. CR 147 of 2012 whereby the learned Magistrate dismissed the petition of Smt.Paramita Poddar, petitioner, which was filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005('the DV Act' hereunder).
[2] Factual background of the case is as under:
Petitioner Smt. Paramita Poddar, filed a petition under Section 12(1) of the DV Act in prescribed format before the Chief Judicial Magistrate, West Tripura, Agartala on 27.08.2012 claiming various reliefs including monetary relief available under the Act. By filing a separate petition she claimed interim relief in terms of Section 23 of the Act which was registered as Misc Case 2419 of 2012 separately. Since the petitioner did not state the facts of her case in detail in her petition she filed a petition before the Court on 29.11.2012 seeking permission to present the statement of facts by amending her petition. Such amendment petition was kept pending by the Court for a period of 2 years until the respondents reminded the court that such petition was pending before the Court and raised objection before the Court to cross examine the witnesses of the 3 petitioner without such statement of facts. The Trial Court by order dated 22.10.2014 then allowed the petitioner to present the statement of facts of her case by amending her petition filed under Section 12 of the DV Act.
[3] It has been stated by the petitioner that she was married to respondent No.01 in accordance with the rites of Hindu Marriage on 08.02.2012 and at the time of marriage she was a student of class XII. After marriage she accompanied her husband to his place. But since her final examination was ahead, her husband allowed her to stay with her parents for preparing for the examination. After her examination was over, she returned to her matrimonial home where she led conjugal life with her respondent husband for some months. Thereafter, a matrimonial discord developed between them. Her husband started demanding dowry for which he and his relatives subjected the petitioner to various kinds of physical and mental torture. Allegedly petitioner's father gave valuables including costly furniture, color TV, Refrigerator etc and organized the marriage function at Agartala hiring a banquet. But her husband was not happy and he and his relatives subjected her to domestic violence at her matrimonial home. She therefore, approached the Court seeking relief under the DV Act. [4] As stated above, after receiving her petition under 4 Section 12 of the DV Act as well as the petition seeking interim relief in terms of Section 23 of the Act, the Trial Court registered her petition for interim relief as a separate Misc case and issued notice to her respondent husband [respondent No.1], mother-in-law [respondent No.2] and sister-in-law [respondent No.3]. The Misc. case was rejected by the trial court on 19.02.2013 without assigning any reason. In the main case, the respondents filed written objection denying the allegations of the petitioner. They claimed that the petitioner was never sincere to her matrimonial obligations and she was always inclined to stay with her parents. According to the respondents, no domestic violence was caused to the petitioner. [5] The case was then listed for evidence and the petitioner was asked to produce her witnesses. Several adjournments were given in favour of the parties on various grounds. Petitioner produced 03 witnesses on 20.01.2014. The respondents were absent on that day. All the witnesses were returned without examination. An objection was raised on behalf the respondents that there was no report of the Protection Officer on record. On many days thereafter, petitioner was present, but the case was adjourned due to absence of the respondents or for some other reason. Again on 22.10.2014, petitioner produced her witnesses before the court. On that day, again her witnesses were returned without examination on the 5 ground that since no statement of facts were submitted by the petitioner in her petition under Section 12 of the DV Act, respondents were not in a position to cross examine the witnesses. [6] As stated above, her pending application to present the statement of facts by amending her petition was then allowed by the court and further date was fixed for recording the evidence of the petitioner. By an order dated 16.01.2015, the CJM transferred the case to the court of Judicial Magistrate, First Class (Court No.4). The learned Judicial Magistrate allowed further adjournment in favour of the petitioner as well as in favour of the respondents on various grounds.
[7] On 11.11.2016, petitioner was absent on medical ground. She also submitted clinical documents in support of her illness. Though the respondents were also absent in court, their appointed counsel contended before the court that the case was being delayed for the fault of the petitioner and therefore, the same should be dismissed. Learned Judicial Magistrate held that as many as 12 dates were fixed for evidence. But the petitioner could not produce her witnesses. Therefore, the learned Magistrate dismissed her case for default. It would be appropriate to reproduce the said order dated 11.11.2016 passed by the Learned Judicial Magistrate which is as under:
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"Today is fixed for evidence by petitioner. Petitioner is absent by filing time petition, supplied by medical prescription.
A petition u/s 317 of Cr.P.C is filed on behalf of respondent.
Considered.
Petition u/s 317 of Cr.P.C is allowed.
Ld. Defence Counsel raises objection against the time petition filed on behalf of the petitioner stating that petitioner has been dragging the case unnecessary for several occasions previously.
Perused the case record.
It is found that this is a case of 2012 and as many as twelve dates were fixed for evidence by petitioner but till today she has not produced any evidence.
Hence, time petition is rejected. This court being a Fast Track Court finds it unreasonable continue with the instant case.
Hence, this case is dismissed on default. Make necessary entry"
[8] Petitioner challenged the said order in appeal before the learned Sessions Judge, Agartala. Her appeal was registered as Criminal Appeal No.109 of 2016 and the case was heard by the Addl. Sessions Judge (Court No.5) West Tripura, Agartala. By the impugned order dated 16.05.2017, the learned Addl. Sessions Judge affirmed the order dated 11.11.2016 passed by the trial court. [9] The Appellate court was of the view that trial court rightly rejected her petition on 16.05.2017 for default because despite repeated adjournments she could not produce her witnesses before the court. Relevant extract of the impugned order passed by the learned Addl. Sessions Judge is as under:
"8.From the aforesaid facts there cannot and should not be any doubt to the fact that whenever the case was fixed for 7 evidence by the petitioner she remained absent and submitted a copy of OPD prescription of Govt. hospital in support of her illness.
Common experience is that, any person can procure OPD prescription by mere attending in Govt. hospital and general practice is that attending doctors prescribed medicines at OPD on verbal consultation of patient himself without thorough medical checkup. Such type of OPD prescription of Govt. hospital is not sufficient to indicate the actual illness to that extent preventing the person from attending before the court. In every occasion while attending at OPD, IGM hospital first date of attendance was recorded as the dates in which she actually appeared at OPD which raises a strong presumption against the aggrieved petitioner towards conclusion that just to avoid the direction of court to adduce evidence she procure such OPD Prescription only with a view to get the adjournment from the Ld. Court. Nothing prevented her to produce other witness for examination in support of her application during the said period. In no circumstances such conduct of aggrieved appellant is found to have been co-operative to the learned Trial Court for speedy trial of the case. If such type of petition is permitted to be allowed one after one then there would be no end of litigation.
9. Consequently, I am of the view that ld. Trial Court has rightly rejected the prayer of aggrieved petitioner on 11.11.2016 and dismissed the application on default which requires no interference by this court.
10. In the result the appeal is dismissed."
[10] Heard Ms. Sarama Deb, counsel appearing for the petitioner.
Heard Mr.P.K.Pal learned counsel representing the respondent No.1 and heard Ms. A. Debbarma, learned counsel on legal aid representing respondent No.2 & 3.
[11] It is contended by Ms. Deb, that the order dated 11.11.2016 of the learned Judicial Magistrate First Class (Court 8 No.4) would demonstrate that the said order was passed without assigning any reason. According to Ms.Deb, the trial court failed to appreciate the fact that petitioner was deserted by her husband and she was encountered with various difficulties including her repeated illness for which she had to take some adjournments. Counsel submits that the respondents were also equally responsible for the delay because many adjournments were allowed in their favour by the trial court. According to Ms. Deb, the petition filed under DV Act should not be rejected on technical ground. Trial court should have decided the case on merit. Learned counsel therefore, urges the court to remand the matter back to the trial court for deciding the case on merit after providing opportunity of hearing to the petitioner.
[12] Mr. P.K.Pal, counsel appearing for the respondent No.01 as well as Ms. A.Debbarma, learned counsel on legal aid representing respondent No.2&3 do not oppose the proposal for remanding the matter back to the trial court for deciding the matter on merit.
[13] As discussed, the petitioner produced her witnesses before the trial court on several dates. But the witnesses were not examined due to various objections raised on behalf of the respondents. Therefore, the finding of the trial court that petitioner 9 did not produce any of her witnesses is not sustainable. The learned appellate court did not also appreciate the fact that petitioner produced her witnesses before the court following the direction of the trial court and the witnesses were returned without examination for objections raised by the respondents. The orders passed by the trial court go to show that delay is not attributable to the petitioner alone. Respondents were equally responsible for the delay because they were favoured with repeated adjournments on various grounds. The trial court did not take note of the fact that the DV Act under sub-section(5) of Section 12 mandated that the Magistrate shall endeavour to dispose of every application filed under sub-section(1) of Section 12 within a period of 60 days from the date of its first hearing. As per the record of the trial court the petition was received in the trial court on 27.08.2012 and it was disposed of after more than 4 years and that too, by an order without assigning sufficient reason which was erroneously upheld by the Appellate Court.
[14] In view of the above, the impugned order dated 16.05.2017 passed by the learned Addl. Sessions Judge, (Court No.5) is set aside and the Criminal Revision Petition stands allowed with the following directions:
(i) Case is remanded back to the trial court for deciding 10 the matter on merit after providing full opportunity of hearing to the parties.
(ii) The petitioner as well as the respondents shall record their appearance before the trial court on 30.11.2021.
(iii)The trial court shall then appoint a date for recording the evidence of the petitioner.
(iv) The petitioner shall produce her witnesses before the court on that day without seeking any adjournment.
(v) Next date will be fixed for recording the evidence of the respondents if they desire to adduce any evidence.
(vi) Neither the respondents nor the petitioner shall seek any adjournment on the appointed date of hearing.
(vii)Trial court shall take all endeavour to decide the matter within 02 months from the date of recording the evidence of the petitioner.
[15] It has also appeared from the record that case of the petitioner for interim monetary relief was kept pending for about 02 years by the trial court and the same was rejected without assigning any reason. Therefore, the petitioner shall be at liberty to file a fresh petition before the trial court seeking interim monetary relief. Since she is stated to have no income at all, her respondent husband [respondent no.1] is directed to pay a lump sum amount of Rs.30,000/- to her as interim relief. He would pay the money at the trial court on the appointed date of his appearance before the trial 11 court i.e. on 30.11.2021 which in turn shall be paid to the petitioner by the trial court.
In terms of the above, the Criminal Revision Petition stands disposed of.
Return the LC record.
JUDGE Saikat Sarma, PS-II