BEFORE THE LD DISTRICT AND SESSION JUDGE AT HOWRAH
Criminal Revisional Jurisdiction
CRR NO OF 2013
IN THE MATTER OF :
An application U/S 397/399 of Code of Criminal Procedure
A Revision: By
Smt XXX Bose
r/o Vill Post Devalaya (Office Para) PS Deganga, Dist 24 Pargana(N), Pin 743424
Vs
1.Smt XXX Bose
D/o Kalipada Deb
PO: GIP Colony PS: Jagacha
Howrah-12
2. State of West Bengal
[Service through the Office of Ld Public prosecutor]
AND
An Impugned order dated 1.8.2018[ Order no 28] passed by the Ld 5th Judicial Magistrate in Misc Case No 283 of 2015 while presiding over a trial u/s 12 of the Domestic Violence 2005 , and thereby rejecting an Objection filed by/ on behalf of the Opp/Respt for Rejection of the Affidavit –on-chief on the ground mentioned therein.
AND
An Objection raised by the Ld Smt Tandra Ghatak on behalf of the respondents under instruction, presenting as a member of Bar, canvassed and objected the practice and procedure adopted by the Ld 5th Judicial Magistrate , Howrah u/s 28(2) of the Domestic Violence 2005, while admitting an Affidavit –on-chief in place of Evidence/trial recommended for summons Trial.
AND
In the matter of interpretation of Law and practice, Res Integra, under :
1. Protection of Domestic Violence Act : Sec 28(1)(2) & 37
2. Protection of Domestic violence rules 2006: Rule 6(5)
3. Indian Evidence Act : Sec 60 & 141
AND
Smt Krishna Bose presenting this Revision for herself and on behalf of her son Manas Kr Bose, who is Mentally Challenged Respondent in the Original application u/s 12 of DV Act 2005.
AND
In the matter of Original Petition in Misc Case No 283 of 2015 before the Ld 5th Judicial Magistrate at Howrah
Smt. XXX Bose[Applican/Complainant]
Vs
Sri XXX Kr Bose & ors[Respondents]
Humble Revision application on behalf of the Smt Krishana Bose-
Most Respectfully:
1. Brief facts:- The complainant wife filed an application u/s 12 of the DV Act for relief against the Respondent husband and other family members on the basis of cause mentioned therein the Original petition and submitted an affidavit- in- Chief in place of Direct evidence, and the ld advocate of respondent raised a written legal objection to reject the Affidavit- in- chief at admission point . But the Ld trial judge pressed her to enter into cross-examination, despite the objection the ld judge pressed her to take one or two cross questions and after taking only two questions the matter differed/adjourned for next date. Understanding the whole legal position the Respondent`s advocate moved a written objection. The objection was rejected by an impugned order dated 1.8.2018. This fact needs to be placed that the husband XXX is mentally sick person and an application under Mental health Act has been pending adjudication for inquisition before this Ld Court.
2. The Legal basis of Rejection: The ld trial judge relied on one Kunapa Reddy vs Kunapa Reddy Swarna kumara reported in (2016)11 SCC 774 for amendment of original petition u/s 12 of the DV Act. The Judgment of the Apex Court was distinguished by the ld Tanmoy Bhattacharyya advocate while arguing and denied its application for “Evidence” .
3. Position at the Bar: The summary of the argument along with the rejected Objection was, that the procedure adopted by the Ld trial judge in not approved by the law and unknown to the Bar. Procedure u/s 28 of the DV act under sub-clause (2) to be well known to the Bar and grounded on the solid basis of Criminal Jurisprudence, guided by article 19 read with 21 of the Indian constitution. Ld Trial judge adopted a hybrid procedure overlooking the rule made by the Central government after passing of the original Act in 2005 and clarified the procedure under Rule 6.
4. The objection: The Ld Magistrate Court under DV act 2005 is a creature of Law with Limited jurisdiction to dispose an Original application u/s 12 , cannot assume inherent power akin to the civil procedure and cannot adopt a pervert procedure which consequently lead to a criminal consequence on violation of order passed by it. Therefore, jurisdiction u/s 28[2) of DV Act cannot over rule Section 37 and other available legal guidance in the statute book. The Bar cannot be taken in to surprise to take part in an unjustified erroneous procedure.
5. Development of Law: Navtej Singh Johar Vs. Union of India through Secretary, Ministry of Law and Justice , in the mentioned case apex court upheld on 6th September 2018, that equality before law is the part of basic structure of constitution and law must not be sex oriented and biased. In our case, any heinous crime could be proved on the basis of face value of the affidavit- in –chief and the Respondent/s would suffer criminal consequences.
6. What Law not permitted: Legislatures by their wisdom permitted Affidavit evidence in case of interim maintenance but not for the trial or final deposal of the complaint u/s 12 of DV Act 2005. Then again leading questions cannot be asked in Examination of chief, but evidence through Affidavit though permitted in a Civil suit can con be applied in Domestic Violence. Again Preponderance of probability for proof cannot be assumed while appreciating evidence in case of Domestic Violence. Strict proof is needed if the consequence is criminal in nature. Again almost all domestic violence case followed a S 498A of IPC case where most of the time evidence could be weak for conviction, then an observation under Domestic Violence could be detrimental in a S 498A of IPC case if pending. Our case is like this nature. This is gross violation of Criminal Jurisprudence and any competent member of Bar could not support the same.
7. That this revision application adopting the grounds mentioned in the Objection and preferring other additional grounds for setting aside the impugned Order.
Grounds
a. The ld trial judge failed to follow the express provision of law.
b. The ld trial judge failed to appreciate a vital facts that the husband Manas Bose is mentally sick person and could not defend the case on his behalf, if somebody is not there to help him.
c. That the ld trial judge adopted a perverted hybrid measure for admitting evidence of the Complainant.
d. The ld trial judge failed and erroneously held that he can proceed with the Evidence by Affidavit.
e. That the ld trial judge misconceived that once the affidavit not objected, it could not be objected at later. The DV Act never objected the same.
f. The ld trial judge failed to appreciate the intrinsic nature of cross-examination and failed to appreciate that affidavit evidence and its perversion could be discovered in practical ground of cross-examination and it is near impossible to cross the complainant complaining criminal ingredients in her DV Petition.
g. Again when there is strong legal and constitutional question is involved the objection cannot be rejected in a cursory manner.
Prayer
It is therefore humbly prayed for :
1. Set aside the impugned order passed by the ld 5t JM on dated 1.8.2018.
2. Issue notice to the respondents
3. Call for records
4. Stay proceeding before the Ld 5th JM
5. Allow the revision on merit
6. Any order/s
And for this act of grace, your petitioner shall be duty bound and shall ever pray.
Signature
Drafted by
TANMY BHATTACHARYYA
Advocate
18/6/1 danesh Sk Lane Howrah 9
Email: advtanmoy@gmail.com
Web: http://www.advocatetanmoy.com
___________________________
Affidavit
I Smt Krishna Bose w/o Shib Ranjan Bose, Mother of Manas Kr Bose , aged around 65, r/o Vill Post Devalaya (Office Para) PS Deganga, Dist 24 Pargana(N), Pin 743424, applicant do hereby solemnly affirm as follows:-
1. That I have made acquainted with the facts and circumstances of this case and Revision application and instructed for drafting this revision and filed it.
2. That the statement made in the para no 1 to 7 are true and grounds are my humble submission
Solemnly affirmed on Signed by Deponent
Date :
Place: Deponent Identified by me
Signature of the Advocate
