Gauhati High Court
Naveen Kumar Chaudhury vs Simrat Kaur Phull on 10 August, 2017
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
& ARUNACHAL PRADESH)
Criminal Revision Petition No.525/2012
Sri Nabeen Kumar Choudhury,
Son of Sri Suresh Chandra, permanent
Resident of 454-Muir Road, Rajapur,
PO & PS-Allahabad, District-Allahabad,
Uttar Pradesh and at present, temporarily
Residing at 241 C Bloc, Naval Officer's Mess
Varuna, Opposite APS Colony, NH-8,
Delhi Cantt, New Delhi-110010
......... Petitioner
-Versus-
Mrs. Simrat Kaur Phull, shown to be residing
At C.o Kamla Devi, 18 East lane, Sundarpur,
Opp NRL Petrol Pump, Guwahati-781 005 and
Resident of C/o Balbir Singh Phul, M/s Samson
Engg Works, A.T.Road, Lahoal, PO & PS- Lahoal
Dibrugarh, Assam, Pin-786010
............Respondent
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the Petitioner : Ms. S.Chakraborty,Advocate For the opp. party : Mr. H.S. Kalsi, Advocate Date of hearing : 12.7.2017 Date of judgment : 10.08.2017 2 JUDGMENT & ORDER (CAV) Heard Mr. S.Chakraborty, learned counsel for the petitioner as well as Mr. H.S.Kalsi, learned counsel for the respondent.
2. The petitioner herein preferred this revision petition under Section 401 read with Section 482 of the Cr.P.C. for quashing the Misc. Case No. 29 m/12 pending in the Court of learned SDJM -1, Kamrup, Guwahati wherein by order dated 2.8.2012 the learned trail Court has directed the petitioner to pay interim maintenance of Rs.8000/- per month to the respondent wife challenging the maintainability of the proceedings under the provisions of Protection of Women from Domestic Violence Act,2005
3. The respondent filed a complaint before the learned Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (herein after referred to as 'Domestic Violence Act'). The contents of the complaint petition disclosed that the opposite party/respondent has alleged various incidents of domestic violence during her stay with the petitioner in the matrimonial house and she was compelled to leave the company of the petitioner due to such domestic violence on the part of the husband and other in-laws. She has prayed for monetary relief other various reliefs under the provisions of the Domestic Violence Act. The petitioner being the husband of the respondent challenged the aforesaid proceedings under Section 12 of the Domestic Violence Act by filing written statement. The learned Magistrate by order dated 2.8.2012 has directed the petitioner to pay interim maintenance of Rs.8000/- per month to the respondent -wife. The said order is under challenge in the revision along with the prayer for quashing the entire proceedings.
4. In the present revision petition the petitioner herein has mentioned about so many aspects as about the marriage between the parties and about the birth of the son the fact that since after the transfer of petitioner to New Delhi the respondent was not inclined to join him for which he resided in single accommodation. It contends that the petitioner has serious doubt about illicit relationship of the respondent with one officer of Indian Navy namely Lieutenant Kunal Kishore for non joining him at the place of posting. In the meantime, they have filed a mutual divorce petition as on 3.11.2009 but subsequently it was withdrawn. Thereafter the respondent started living with said 3 Kunal Kishor at Vishakapattanam since 2009 to 2011. Moreover on the application made by the respondent the Naval Authorities upon due enquiry granted maintenance to their minor son. The respondent also filed a divorce case (TS 116/10) before the District Judge, Dibrugarh in the year 2010 as well as maintenance petition (Misc.Case 70/11) in the year 2011 before the SDJM, Dibrugarh which are still pending. During pendency of the aforesaid petition at Dibrugarh District the present application under the Domestic Violence Act was filed in the Court of SDJM, Guwahati is stated to be bad in law inasmuch as this Court has no jurisdiction to entertain the petition as the petitioner is a resident of Dibrugarh. Further it has been contended that the petitioner already obtained an order for restitution of conjugal right from the Court of Alhabad dated 1.11.2012 but respondent has not yet joined to him.
5. Regarding the petition under the Domestic Violence Act that has been filed by the respondent it is submitted that same was filed in a perfunctory manner only to make illegal and undue gain inasmuch as in the petition almost all the clauses have been tick marked without substantiating the relevant facts. Similarly the learned trial Court has passed the impugned order without taking into consideration the objection made by the petitioner.
6. The respondent herein has filed affidavit- in-reply denying all the allegations made by the petitioner contending that the provision of section 482 cannot be invoked to resist the due execution of the interlocutory order that has been passed by the learned trial Court. Only because of pendency of cases in the Court of Dibrugarh the petitioner is not debarred to file a case under the Domestic Violence Act as presently she resides within the jurisdiction of Court of Guwahati in connection with her temporary employment vis-a-vis in search of better employment. The learned Court of Guwahati has jurisdiction to entertain such petition in terms of the Domestic Violence Act. Refuting all the averments made by the petitioner in his petition it has been submitted that the petitioner himself has taken contradictory stand which itself indicates his falsity of allegation. It has been pointed out that while filing a petition under Section 12 of the Domestic Violence Act, all details of the occurrence need not be narrated .
7. It is found that the petitioner herein filed affidavit-in-reply apprising another fact that he has come to know that the respondent-wife reside at Delhi and she is an 4 employee of Indigo Airlines and she even did not reside in the jurisdiction of Guwahati so the continuance of the proceeding in Guwahati amounts abuse of process of Court.
8. Due consideration is given to the submissions of the learned counsel for both the parties as well as the pleadings between the parties. To be precise it can be summed up that both the parties are not staying together and not carrying any conjugal life since 2009 and in the year 2010 the respondent-wife filed a divorce case as well as maintenance case in the year 2011 in the Court of Dibrugarh as she was staying at her parental house and the said cases are still pending. The respondent-wife who was without any income and on the other hand has to maintain her child began to reside in Guwahati in connection with her employment in a job in Guwahati and thereafter she filed the complaint under the Domestic Violence Act in the year 2012. The petitioner contested the said case by filing written statement and thereafter the case was fixed for evidence and the learned trial Court passed an order for interim maintenance on due consideration. At this stage, the petitioner herein comes forward challenging the said proceeding as mentioned above. Obviously, all the allegations that has been made by the petitioner in the present petition relates to certain facts and circumstances which can only be proved by way of evidence but not by way of allegation. Unless and until such allegation brought on record by way of evidence by giving an opportunity to the other side to test the veracity of same by way of cross- examination. All these disputed facts are subject matter of trial.
9. On the other hand, the conduct of the petitioner itself appears to be inconsistent so as to impress upon the Court about its authenticity. In one part, the petitioner has alleged about illicit relationship of respondent with another person and also about filing of mutual divorce petition but subsequently divorce petition was withdrawn and thereafter filed a petition for restitution for conjugal right. It is not at all understood by this Court nor explained by the petitioner as to under what circumstances, inspite of raising serious allegations against the respondent-wife, he prayed for restitution of conjugal life. In the circumstances the petitioner miserably failed to establish any cogent reason to invoke the extra ordinary jurisdiction U/S 482 CrPC to quash the proceeding.
10. Although as per the provisions U/S 482 CrPC the High Court has inherent power to make such order as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice 5 but the expression abuse of the process of or to secure the ends of justice do not confer unlimited jurisdiction on the High Court and same can only be secured in accordance with law including the procedural law nor otherwise. Such an inherent power in the nature of extra ordinary power to be used sparingly for assuming the object mentioned in the Section 482 CrPC. Further in Alpic Finance Ltd. -vs- P.Sadasvian and another Manu SC /0106/2001 it has been held that power to quash the FIR or the complaint can be exercised where the allegation made in the same are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings. However, at this stage the High Court is not justified in embarking upon an enquiry so as to the probability, reliability or genuineness of the allegation made therein.
11. As regards the acceptability of the documents relied by the petitioner at this stage of filing the quash proceeding it has been held by the Hon'ble Apex Court that such annexures cannot be termed or read as evidence without being tested and proved (case referred Manu SC/0946/2003). Similarly, while exercising jurisdiction U/S 482 CrPC it is impermissible for the Court to look into the material produced before the Court the acceptability of which is essentially a matter for consideration trial. And it cannot be appreciated as an evidence like a trial Judge.
12. On the other hand, the respondent-wife has made a consistent allegation as against the petitioner since filing the divorce petition in the year 2010 as about the various conducts of the petitioner husband which may amount to cruelty within the meaning of Hindu Marriage Act and Domestic Violence within the meaning of Domestic Violence Act which is again to be tested in course of trial.
Further provision made under Section 26 of the Domestic Violence Act is an enabling provision to such an aggrieved person which reads as follows:
" 26. Relief in other suits and legal proceedings.- (1) Any relief available under the Sections 18 .19.20.21. and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of the Act .6
(2) Any relief referred to in sub-section (1) may be sought for in additional to any along with any other relief that the aggrieved person seek in such suit or legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief."
The above provision indicative of fact that such a petition is maintainable before a Magistrate irrespective of pending another proceeding before any other Court and the Act itself being a special legislature to address the various issue of Domestic Violence which includes mental, physical, verbal and emotional abuse or economic or financial deprivation.
13. On the next on perusal of records it reflects that at the time of filing of divorce case the petitioner resided at Dibrugarh at her parental address and while filing the case in Guwahati her temporary address is shown as Sundarpur,Guwahati working as a Typist. So far as the territorial jurisdiction of a Magistrate to entertain a petition U/S 12 of the Domestic Violence Act it is relevant to quote the provisions of Section 27 of the Domestic Violence Act which reads as follows:
"27. Jurisdiction- (1) The Court of Judicial Magistrate,1st Class or the Metropolitan Magistrate as the case may be, within the local limit of which-
(a) the person aggrieved permanently or temporary resides or carries on business or is employed, or
(b) the respondent resides or carries ion business or is employed, or
(c) the cause of action arisen, Shall be the competent court to grant a protection order and other order under the Act to try offences under this Act."
14. On mere perusal of the provisions of Section 27 of the Domestic Violence Act will reflects that any aggrieved person who is temporarily residing or carrying business or is employed within the local limit of the jurisdiction of the Magistrate concerned can 7 file a proceeding under Section 12 of the Domestic Violence Act in the Court of said Magistrate. In the present case the respondent is stated to be residing in within the territory jurisdiction of learned Magistrate at Guwahati in course of her employment which may be temporary. Since the respondent is residing temporarily within the territorial jurisdiction of Magistrate at Guwahati the Magistrate has the jurisdiction to entertain the proceedings U/S 12 of the Domestic Violence Act.
15. On the other hand the learned Magistrate by virtue of the provisions exercised under Section 23 of the Act the Magistrate can pass any such interim order as he deemed just and proper. Section 23 (2) provides that if the Magistrate satisfied that an application prima facie discloses that the respondent is committing or has committed an act of Domestic Violence Act or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex-parte order on the basis of affidavit in such form as may be prescribed of the aggrieved person under Section 18,19,20,21 or as the case may be Section 22 against the respondent.
16. In the instant case on the basis of the petition supported by an affidavit filed by the respondent wife also after giving an opportunity of filing objection on the part of the petitioner (respondent in the said case) and also taking into account that the wife has a minor child to maintain, has passed the interim order with a direction to the petitioner to pay the maintenance amount of Rs.8000/- is found to be directed in consonance with the provision of the Domestic Violence Act. No sort of illegality or irregularity is made out, calling for interference by this Court.
17. In view of the observations and discussions above, the present petition stands dismissed.
JUDGE Nandi 8 9 Crl. Appeal 96/16 and 110/16
2. last line of para 2.... at the conclusion of the trial charge-sheet was submitted U/S 20 (b)NDPS Act accused faced the trial from behind the bars. The learned trial Court after hearing of both sides framed the Charge U/S 20(b) NDPS Act and same is explained to the accused appellants to which they pleaded not guilty and faced the trial. During the course trial prosecution examined 11 witnesses including the investigating officer as well as the Scientific Officer and defence examined none. Plea of defence is total denial. Statement of accused persons were recorded U/S 313 CrPC.
5. At the conclusion of the trial and after hearing argument of learned counsel for both sides, the learned trial court came to the findings that 38 Kgs of contraband ganja were recovered from the possession of the accused appellants and held that the prosecution had been able to prove the charge against the accused appellants under Section 20[b] of the NDPS act, 1985 and they were convicted as mentioned above.
6. Being highly aggrieved and dis-satisfied with the impugned judgment and order dated 24.8.2016 passed by the learned Special Judge, at Jorhat in Special Case No. 8 of 2013, the appellants preferred the present two appeals separately and both the appeals were taken together for disposal by this common judgment.
7. Heard learned Amicus Curiae Mr. R. De and Mr. S. Islam, Amicus Curiae for and on behalf of the three appellants and also heard the learned counsel for the State Respondent.
7. In course of argument learned Amicus Curiae has submitted that the case is bad for non examination of independent witness and prosecution also failed to prove the recovery of drugs from the conscious possession of the accused appellants. On the other hand, it is contended by the learned counsel for the State Respondents that the 10 search and seizure was made in the presence of the driver and handiman of the vehicle who were independent witnesses of the occurrence and the fact that accused appellants owned the possession of said bags containing drugs in presence of those two witnesses as well as before the team of police officer who were present at the time of checking. Nothing emerges to discard the evidence of prosecution and in view of the fact that such a recovery was made in a regular police checking, non having of more independent witness is natural.
Let us appreciate the evidence on record
7. PW 1 Md. Nekibuddin Ahmed and PW 2 Sri Haresh Das, driver and handyman of the bus where the accused appellants boarded from Sivasagar ASTC towards Jorhat ASTC and at that time they had three air bags in their hands. When the bus reached near Rajamaidam Tini-Ali they noticed that police personal stopped their bus and conducted checking. Police seized all the aforesaid three air bags from the possession of the appellants which contained bhang (ganja).The statements of PW 1 and PW 2 are corroborating each other. According to PW 2 he did not take any fare of the bags wherein contraband ganaja was carried. As usual fares are generally taken from the vegetables, fruits etc for business purpose .
8. PW 3, ASI Sri Anil Chandra Gogoi; PW 4, Constable Sri Jira Bhumiz; PW 5 Sri Jogen Dutta, a UB Constable ; PW 6 Sri Binanda Konwar a UB Constable ; PW 7 is also a Constable