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2001 DIGILAW 584 (CAL)

Shipra Banerjee v. State of W. B.

2001-09-07

AMIT TALUKDAR

body2001
JUDGMENT Amit Talukdar, J.: Gender Justice even if it can undo the wrong suffered by the petitioner in her matrimonial home which prompted her to move the court for maintenance under section 125 of the Code of Criminal Procedure (for brevity, the said Code) wherein she was further wronged; but, however, cannot give a healing touch to the agony suffered by her since her jinxed matrimony spread out over twenty two years. Prayer for maintenance before the court of the learned Chief Judicial Magistrate, Barasat having been spurned on account of a lack of territorial jurisdiction and the question of res judicata has only rubbed salt to her injurious state of mind. Since her marriage the petitioner who had expectations of floral garlands of love and affection and the warmth of a conjugal life was greeted with a ring of thomes. Roses having given away to thomes in her jinxed matrimony the petitioner along with her hapless ward sought an oasis in her arid desert of misfortune before the court of the learned Chief Judicial Magistrate, Barasat under Chapter IX of the said Code. What was sought to be an oasis by way of securing some succour and relief to stitch her body and soul in tune and to provide a few yarns of cloths for her and few morsels of cereals turned out to be a teasing mirage. 2. This court in this revisional application is entrusted with the job of placating the petitioner from the said mirage; if not, to her cherished oasis and to repair her distraught matrimony but at lest to soothe her gapping wounds fractured by indifference, neglect and some dead legal technicalities which have stood as a stumbling block before this weeping lady. The hands of this court may not be long enough to wipe out the already dried out tears from her cheek but at least, can undo the wrong suffered by her in the sanctum sanctorum. At the very outset with due respect to His Honour I am unable to persuade myself to the finding arrived at by the learned Chief Judicial Magistrate, Barasat in the impugned order. Certain basics which have gone wrong have to be repaired, in the process I am afraid the entire mechanism has to be restructured. However, is it not the ultimate Goal of Justice which should activate the court of law ? Certain basics which have gone wrong have to be repaired, in the process I am afraid the entire mechanism has to be restructured. However, is it not the ultimate Goal of Justice which should activate the court of law ? With the said Social Mission of Law I endeavour to construe the impugned order. 3. Firstly, the ground which weighed in the mind of the learned Chief Judicial Magistrate that an earlier award on 04.4.94 under section 125 of the said Code was dismissed "on the ground that she had no reason to live separately from the husband". As such, "this ground being tried in earlier application, the present claim is barred by res judicata." This finding is wholly untenable. Just because a maintenance proceeding under section 125 of the said Code is not a Petition of Complaint within the definitional clause of section 2 of sub-clause (d) of the said Code which reads as follows: '(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report.' As such, in order to attract the mischief of the said sub-clause the sine qua non has to be commission of an offence. But a petition under section 125 under Chapter IX of the said Code which speaks of the remedial jurisdiction of the court to provide succour to the hapless wives and destitute women cannot be dubbed as a petition of complaint in the said sense it is only a summary redressal for prevention of vagrancy. 4. The concept of ‘res judicata’ is not altogether an alien concept in the Criminal Justice System. 4. The concept of ‘res judicata’ is not altogether an alien concept in the Criminal Justice System. Section 403 of the said Code which is the legatee of section 403 of the old Code starts with the opening line in sub-section (1): "A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made........." The emphasis in the said sub-section is focussed on the word 'tried', the word offence and convicted or acquitted of such offence' since neither the proceeding under Chapter IX of the said Code is a trial nor is any concept of acquittal or conviction and as the proceedings do not fall within the definition of offence in sub-clause (n) of section 2 which also reads as follows: '(n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871 (1 of 1871)'. The concept of 'Res Judicata' cannot apply in a proceeding under Chapter IX of the said Code. 5. A charitable view of the said situation even if taken by seeking refuge to the hallowed provision of sub-clause (2) of Article 20 of the Constitution of India which reads as follows: " No person shall be prosecuted and punished for the same offence more than once." also cannot in any manner come to the rescue of the situation as the proceeding under Chapter IX of the said Code does not postulate prosecution and punishment and as discussed hereinabove the concept of offence is lacking the principles of autro fois acquit or if I borrow the sublime concept of ‘issue estoppel’ I am afraid it does not improve the position. 6. A suffering woman having been wronged at the hands of her husband suffers perennialy. 6. A suffering woman having been wronged at the hands of her husband suffers perennialy. Her suffering remains unabated even if a Magestrial order renouncing her prayer stares at the face, law does not envisage that she should be hounded out from the magestic/portals of the court simply with the stigma that her earlier petition was refused, that is not so. Wailing cries of a battered woman in the foreclosed cell of her impaired matrimony cannot be catapulted and dissected by order of refusal at one stage to preclude her from coming up once again. It is a continuous affair each day and each night she suffers, every time she comes before a court, there is a fresh cause of action. She cannot be denied access to the court simply on the ground that her earlier prayer was turned down, this is per se illegal as a proceeding under Chapter IX of the said Code is neither a complaint nor it entails any offence. The concept of Double Jeopardy cannot be invoked for redressing her wrong. I wish I could have stopped there. But that is not to be. 7. She has also being wronged in another score. Her prayer was also turned down by the learned Chief Judicial Magistrate that “both the parties live outside the jurisdiction of this Court. There is no assertion as to why the application should be entertained in this court. So I find that this court has no jurisdiction to entertain the claim under section 127 of the Cr. P.C. for the child.” This is also a very fallacious notion. Reference to section 126 of the said need be made which reads as follows: "126. (1) Proceedings under section 125 may be taken against any person in any district- (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child". as it appears form the petition filed under section 125 of the said Code that the opposite party resides within the jurisdication of learned Sub-Divisional Judicial Magistrate, Alipore whereas the opposite party resides within the jurisdiction of the learned Sealdah Court. as it appears form the petition filed under section 125 of the said Code that the opposite party resides within the jurisdication of learned Sub-Divisional Judicial Magistrate, Alipore whereas the opposite party resides within the jurisdiction of the learned Sealdah Court. As such, a strict interpretation of sub-section (1) of section 126 of the said Code takes away the breeze under the wings of the petitioner so far as the question of GEOGRAPHY is concerned. But will that simpliciter be sufficient to discard a prayer made under Chapter IX of the said Code ? Is not such a proceeding maionated by the benign provisions of Article 15 sub-clause (3) nourished by the sweep of Article 39 of the Constitution of India as held by the Supreme Court in Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal, reported in AIR 1978 S. C. 1807? If a Spartan look at the problem is given then certainly the learned Chief Judicial Magistrate is right. But, however, an Athenian Court cannot govern the fate of a destitute woman. It was incumbent upon the learned Chief Judicial Magistrate to invoke section 201(a) and direct presentation to the proper court with an endorsement to that effect. That is one aspect of the problem. 8. Yet I am still of the view these are all archaic notions which should not cloud the judgment of a Criminal Court in the Justice Delivery Process when we have such contemporaneous decision of the Apex Court where geographical limits and territorial hassles have been dissolved in the decisions of:- 1. Trisuns Chemical Industry vs. Rajesh Agarwal and Ors., (1999) 8 S.C.C. 686 ; 2. K. Bhaskaran vs. Sankaran Vaidhy Balan and Anr., AIR 1999 S.C. 3762 ; and 3. Navinchandra N. Majithia vs. State of Maharashtra and Ors., (2000) 7 S. C. C. 640. These are the decisions of the Hon'ble Apex Court which mellows down the rigours of jurisdiciton for taking cognizance on the question of territorial domicile. In all the order passed by the learned Chief Judical Magistrate, Barasat on 22.3.2001 has to be set aside. 9. Accordingly, the same is set aside and the proceeding is again sent on remand for considering the prayer of the petitioner for a claim of maintenance for herself and enhancement of the amount of maintenance granted in favour of the child by the learned Chief Judicial Magistrate, Barasat. 9. Accordingly, the same is set aside and the proceeding is again sent on remand for considering the prayer of the petitioner for a claim of maintenance for herself and enhancement of the amount of maintenance granted in favour of the child by the learned Chief Judicial Magistrate, Barasat. I am further of the view that as the petitioner has been persecuting her remedies for a pretty length of time and from the averments made in her application it appears she is saddled with the expenses of her child it would be apposite that she receives by way of interim maintenance till the learned Court below arrives at its final decision to the tune of Rs. 1.000/- each for the petitioner and her son totalling to Rs. 2,000/- per month from the date of filing of the application in M. Case No. 646 of 2000. The Affidavit-of-Service which indicates that the petitioner has received the notice, be kept with the record. The revisional application allowed. Revisional application allowed.