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2002 DIGILAW 524 (CAL)

Samsul Haque @ Halim v. State of W. B.

2002-08-08

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This application under Article 227 of the Constitution has been directed against the judgement and order dated 29th January, 02 passed by the learned Additional Sessions Judge, 12th Court, Alipore thereby affirming the judgement and order dated 22nd January, 2001 passed by the learned Additional Chief Judicial Magistrate, Alipore in T.R. No. 228/98 and dismissing the revisional application being No. 144/01 of the said court of 12th Additional Sessions Judge, South 24-Parganas. By his said order the learned Additional C.J.M., Alipore allowed a maintenance petition under section 125 Cr. P.C. filed by the wife, Bibi Mrengo, (the present O.P. No. 2 of this revisional application) against the husband, Samsul Haque, (the present petitioner) claiming maintenance from him on the ground that she was the married wife of the said Samsul Haque and she was driven out by him from the matrimonial home and she was compelled to leave in the house of her father with her two sons aged 28 years and 14 years and had no independent source of income and was passing her days with great hardship. Her further case was that the husband was employed under the Calcutta Port Trust and was earning Rs. 7000/- per month as his gross salary. After considering the evidence and hearing the arguments the learned Magistrate passed the impugned order allowing a total sum of Rs. 1200/- per month (Rs. 500 for the wife and Rs. 700 for the younger son) as payable by the husband to her on account of maintenance being effective from 15t April, 1998. 2. Being aggrieved by that order the husband Samsul Haque preferred a revisional application before the Court of Sessions Judge wherefrom the case transferred to the court of 12th Additional Sessions Judge who passed the impugned order under which he dismissed the revisional application and affirmed the impugned order of the learned Additional C.J.M. 3. Being again aggrieved by that order the husband has preferred this application under Article 227 of the Constitution challenging that order of the court below as illegal, erroneous, improper and unsustainable. It has been the contention of Mr. De, the learned counsel for the petitioner that both the courts below wrongly held that the O.P. No. 2 was the married wife of the petitioner. It has been the contention of Mr. De, the learned counsel for the petitioner that both the courts below wrongly held that the O.P. No. 2 was the married wife of the petitioner. According to him the alleged marriage has not been proved and on that score the O.P. No. 2, or, for that matter, the alleged younger son is not entitled to maintenance. The further contention of Mr. De is that the courts below were also wrong in coming to the conclusion that the alleged younger son Md. Jube was born out of this wedlock and on that score also the order of maintenance in favour of that boy suffers infirmity. 4. Mr. Ali, learned Advocate for the O.P. on the other hand has contended that this application under Article 227 of the Constitution is not maintainable at all. In support of his contention he refers to a number of decisions of the Apex Court. He refers AIR 1975 SC 1297 (Babhutmal Aswal vs. Lakshmi By) under which the Hon'ble Supreme Court held that the power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in proper cases. This power cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. And the High Court cannot in the guise of exercising its jurisdiction under Article 227 confer on itself the powers of a court of appeal when the legislature has not conferred any such right and made the decision of the subordinate court or Tribunal final on facts. It cannot correct mere errors of fact by examining the evidence and re-appreciating it and it cannot claim to interfere with the findings of fact reached by the District Court even on the ground that the said court below has misread a part of the evidence and ignored another part of it. It is very clear that in the present application what has been challenged is the finding of fact arrived at by the courts below concurrently. It is very clear that in the present application what has been challenged is the finding of fact arrived at by the courts below concurrently. It is a well settled principle that a court of appeal or revision cannot enter into or determine a question of fact a finding on which has been concurrently arrived at by both the courts below and this principle in an application under Article 227 of the Constitution becomes applicable with no less vehemence. In view of the above principle enunciated by the Apex Court there cannot be any doubt that under the circumstances prevailing in the present case the provisions of Article 227 of the Constitution are inapplicable and cannot be invoked. Mr. Ali has relied upon another decision of the Apex Court reported in AIR 1984 SC 38 (Md. Yunus vs. Md. Mustakim & Ors.) wherein it has been held that a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227 and the supervisory jurisdiction conferred on the High Courts under this Article is limited to "seeing that an inferior court or tribunal functions within the limits of its authority" and not to correct an error apparent on the basis of the record much less an error of law. It has been further observed by Their Lordships that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. 5. In the present case it goes without saying that what has been challenged is the finding of the court below as to a factual question, namely, whether there was a valid marriage between the parties and whether a particular boy was born out of such wedlock between the parties. It is needless to point out that such findings of the Court below cannot be the subject matter of challenge under Article 227 of the Constitution in view of clear bar imposed as per the ruling given by Their Lordships of the Apex Court in the abovementioned cases. It should be remembered that in the name of power of superintendence statutory law cannot be allowed to be circumvented. 6. It should be remembered that in the name of power of superintendence statutory law cannot be allowed to be circumvented. 6. Be that as it may, even if for a moment for the sake of argument, Mr. De's view are assumed to be correct that such a petition under Article 227 of the Constitution is maintainable under the law, even then on an analysis and scrutiny of the evidence on record I find that the findings of both the courts are fully justified. The P.W.1, the wife herself has stated on oath that out of this wedlock she gave birth two sons namely Mafiz and Jube who are aged 28 and 14 years respectively and, curiously enough, this unambiguous statement of the petitioner-wife (P.W.1) made in her examination-in-chief has remained totally unchallenged in her cross-examination. It is a well acknowledged legal principle that whenever any evidence is unchallenged or is not subjected to any cross-examination at all has to be treated as admitted. Here Mr. De cannot give any satisfactory reply as to the legal position that in the face of a statement of the wife (P.W. 1) remaining totally unchallenged the husband can nor now dispute the fact that the boy Jube was fathered by him. Therefore from this point of view I do not find any infirmity or incorrectness in the findings of the Courts below that there was a valid marriage between the petitioner and the O.P. No. 2 and also that the boy Jube was born out of that wedlock. 7. It is needless to point out that here the position is not a like one where it can be said that the findings of fact arrived at by the courts below are manifestly and grossly erroneous and cause any flagrant miscarriage of justice. That being so, there cannot be any scope for this court to entertain such a petition under Article 227 of the Constitution. 8. In view of the above reasons there is no escape from the conclusion that the petition under Article 227 of the Constitution is legally not maintainable. Accordingly the same be dismissed and the impugned judgment of the Court below be affirmed. 9. L.C.R. be sent down forthwith. Office is further directed to communicate this order to the court below and a compliance report shall be submitted by the Office. Appeal dismissed.