In the court of the Additional Sessions Judge, 4th Court, Howrah
District :Howrah.
Mahua Kumar (Lahiri) vs Sanjay Kumar and ors
Present: Shri D.V. Srinivas.
ADJ 4th Court, Howrah
Criminal Appeal No.96/2019
1.Mrs. Mahua Kumar (Lahiri)
W/O. Sanjay Kumar,
of 144/46, Dharmatala Road,
PS:MP Ghora,
District:Howrah,
– – – Appellant /Aggrieved Person
Versus
1.Sanjay Kumar,
S/O.Sunil Ch. Kumar,
of 6/5/1 Ghosh Para Lane,
District: Howrah,
2.The State of West Bengal
– – – Respondents
Advocate for the Appellant: Tandra Ghatak,
Advocate for the Respondent No.1: Partha Sarathi Santra.
Advocate for the Respondent No.2: Shri Sanjoy Kumar Pandey.
Appeal U/S.29 of the PWDVAct 2005
Judgment delivered on 14-09-2022
JUDGMENT
1. This appeal is against the order dated 09-09-2019 of the Ld. JM 2nd Court, Howrah in an application filed by the appellant-wife U/S.12 of the Protection of Women from Domestic Violence Act 2005 hereinafter called the Act for the sake of convenience, vide Misc Case No.234/2008. In the memorandum of appeal, the appellant-aggrieved person has inter alia stated that the Ld. Court below has erred in not appreciating the facts shown in the show-cause petition filed by the appellant-wife, has erred in appreciating that the Advocate of the petitioner can conduct the case in absence of the petitioner, has failed to state that the show-cause was for one particular day and not on all dates and other grounds which are more detailed in the memorandum of appeal.
2. For the sake of convenience the parties are addressed as they were addressed before the Ld. Court below.
3. The case of the petitioner–aggrieved person in brief is that she was married to the respondent No.1 who is the OP No.1 before the Ld. Lower Court hereinafter called the OP on 22- 05-2004 according to Hindu rites & customs. As the OP inflicted domestic violence upon the aggrieved person, the said application U/S.12 of the Act has been preferred by the aggrieved person. While the matter stood thus as the aggrieved-person failed to appear before the Ld. Lower on the date fixed i.e. on 09-09-2019 despite issuance of show-cause, the Ld. Lower Court dismissed the case for default.
4.Point for determination:
I. Whether there is any illegality, irregularity or error in the said assailed order of the Ld. Lower Court to interfere with ?
Decision with reasons:
5. Ld. Advocate on behalf of the aggrieved person submitted that in accordance with the order of the Ld. Lower Court show-cause has been filed on 26-07-2019 and submitted that Court below has failed to appreciate the fact that a case under the Act can be proceeded in the absence of the aggrieved-person. He relied on 2009(4) CHN 94. He also submitted that if the said show-cause is accepted he will make every endeavor to dispose the case before the Ld. Lower Court within two months
6. Ld. Advocate on behalf of the OP submitted that since 2013 the aggrieved-person is seeking adjournments after adjournments for one reason or the other. He further submitted that the appeal should be dismissed.
7. Ld. PP-in-Charge on behalf of the state has submitted that the appeal is liable to be dismissed.
8. It is necessary to peruse the said citation relied upon by the Ld. Advocate on behalf of the aggrieved-person. In Siladitya Basak v. State of West Bengal, 2009 SCC OnLine Cal 1903 : (2009) 4 CHN 94 at page 97 relied upon by the Ld. Advocate on behalf of the aggrieved-person it has been inter alia observed that the respondent need not appear in person unless directed by the court. The ratio of the said citation goes against the submission of the Ld. Advocate on behalf of the aggrieved-person that personal appearance of the aggrieved-person has been exempted in the said citation. The ratio of the said citation is more in support of the impugned order.
9. Hd. Ld. Advocates on behalf of all parties. Perused the said citation relied upon by the Ld. Advocate on behalf of the aggrieved-person, the assailed order, the LCR, the memorandum of appeal and other materials on record.
10. It appears from the LCR that on 15-12-2018 when the case was fixed for evidence, the aggrieved-person prayed for time and the said prayer was rejected by the Ld. Lower Court and the aggrieved-person was directed to file a show-cause on the following date i.e. on 06-04-2019. On the next date i.e. on 06-04- 2019 the aggrieved-person did not file any show-cause and prayed for time. As the PO was on leave on that day the case was fixed to 26-07-2019 for filing show-cause by the aggrieved-person. On 26-07-2019 the aggrieved-person filed show-cause and as the OP prayed for time the case was fixed to 09-09-2019 for hearing of the show-cause filed by the aggrieved-person.
11. In its order dated 09-09-2019 the Ld. Lower Court inter alia observed that on the said date i.e. on 09-09-2019, the aggrieved-person was absent without petition. The Ld. Lower Court also observed that despite opportunity being given to the aggrievedperson since the year 2013, the aggrieved-person has for one reason or the another has failed to adduce evidence. On account of the absence of the aggrieved-person and failure on the part of the aggrieved-person to adduce evidence since the year 2013 the showcause filed by the aggrieved-person was rejected.
12. In this context it is pertinent to point out that on perusal of the LCR it appears that on 09-09-2019 a petition has been filed by the Ld. Advocate on behalf of the aggrieved-person inter alia stating that on account of sudden illness, she could not come to the court and Ld. Advocate on behalf of the aggrieved-person may be permitted to conduct the hearing of the show-cause. The Ld. Lower Court has clearly erred in not considering the said petition filed by the aggrieved-person and observing in the assailed order
that the aggrieved-person was absent without petition.
13. Admittedly it appears from the materials in the LCR that since 2013 the case is pending for adducing evidence. It also appears from the record that a show-cause with an affidavit has been filed by the aggrieved-person on 26-07-2019. There is no affidavit by the OP denying the said facts as stated by the aggrievedperson in the said affidavit. Be it be mentioned that citation relied upon by the Ld. Advocate on behalf of the aggrieved-person, does not state about exemption of the personal appearance of aggrieved person who has to appear on each and every date and there is nothing in the said citation which grants exemption from personal appearance of the aggrieved-person, but instead states that it is not necessary that the “respondent” has invariably to appear in person unless directed by the court. The Hon’ble High Court of Calcutta in para 15 of Siladitya Basak v. State of West Bengal, 2009 SCC OnLine Cal 1903 : (2009) 4 CHN 94 at page 97 relied upon by the Ld.Advocate on behalf of the aggrieved-person it has been inter alia observed:
“15. Undoubtedly, the learned Magistrate has committed illegality
in asking the petitioners to appear in person. Form VII clearly
provides that the learned Magistrate may direct that the
respondents may appear either personally or through a duly
authorized Counsel. Therefore, since the application under section
12 of the Act is meant for certain reliefs under sections 18, 19, 20,
21, 22 & 23, it is not necessary that the “respondent” has
invariably to appear in person. Of course, the Magistrate has
judicial discretion to direct appearance of a respondent in person
provided such appearance is found necessary for adjudication of
the dispute. But the matter of the fact is that the section 12 of the
Act does not relate to any offence punishable under the IPC.
Therefore, personal appearance of a respondent is not a must. It is
submitted by the learned Counsel for the petitioners because of
such direction the petitioners had to appear in person and to make
an application under section 205 of Criminal Procedure Code. I
must observe that any such application under section 205 of Cr.PC
is not necessary. If any pleader has been engaged by the
petitioners in the learned Trial Court representation by the pleader
will suffice and personal appearance of the petitioners is not
necessary unless the Magistrate finds it expedient at any certain occasion.”
14. From the said observation it is clear that the Magistrate has judicial discretion to direct appearance of a respondent in person provided such appearance is found necessary for adjudication of the dispute. The said citation does not state about exemption of personal appearance of the aggrieved-person who has to remain present in the court on the dates fixed without fail.
15. As the findings of the Ld. Lower Court in the assailed order is devoid of the said petition dated 09-09-2019 filed by the Ld. Advocate on behalf of the aggrieved-person, and the Act being a welfare legislation meant for protection of women from domestic violence, the assailed order merits interference, and thus the said appeal filed by the aggrieved person merits consideration and deserved to be allowed on account of the aforementioned reasons under facts and circumstances of the case to meet the best interest of justice.
16. Accordingly the said point No.I, is answered in favor the aggrieved-person/appellant.
Hence, Ordered, the appeal is allowed on contest. The order dated 09-09-2019 of the Ld. JM 2nd Court, Howrah in Misc. Case No.232/2008 is set aside. The said Misc. Case No.232/2008 is restored back on the file of the learned Magistrate for disposal according to law. It may not be out of place to mention that under the provisions of the Act an application under section 12 are in the nature of summary proceedings which are to be decided within sixty days. Here is a case where such an application filed way back in the year 2008 is still pending at the stage of evidence. The parties to remain present before the Ld. JM 2nd Court, Howrah on 17-11-2022 at 10:30 AM. The aggrieved-person to remain present before the Ld. Lower Court on the dates fixed without fail unless prevented from some unforeseen circumstances which is left to the discretion of the Ld. Lower Court to decide on the basis of such petition filed if any during such circumstances.
Let a copy of this order along with LCR be sent to the Court of Ld. Judicial Magistrate, Second Court at
Howrah, District: Howrah, for information and necessary action.
(Duri Venkat Srinivas.)
Additional Sessions Judge, 4th Court
Howrah (J.O. Code: WB00774)
Dated: 14-09-2022
Ordered
The appeal is allowed on contest. The order dated 09/09/2019 of the Ld. JM 2nd Court, Howrah in Misc. Case No.232/2008 is set aside. The said Misc. Case No.232/2008 is restored back on the file of the learned Magistrate for disposal according to law. It may not be out of place to mention that under the provisions of the Act an application under section 12 are in the nature of summary proceedings which are to be decided within sixty days. Here is a case where such an application filed way back in the year 2008 is still pending at the stage of evidence. The parties to remain present before the Ld. JM 2nd Court, Howrah on 17/11/2022 at 10:30 AM. The aggrieved person to remain present before the Ld. Lower Court on the dates fixed without fail unless prevented from some unforeseen circumstances which is left to the discretion of the Ld. Lower Court to decide on the basis of such petition filed if any during such circumstances.
Let a copy of this order along with LCR be sent to the Court of Ld. Judicial Magistrate, Second Court at Howrah, District: Howrah, for information and necessary action.
