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2008 DIGILAW 1009 (CAL)

Prasanta Banerjee v. Tandra Banerjee

2008-11-19

ASHIM KUMAR ROY

body2008
JUDGMENT:- (1.) In this criminal revision under Article 227 of the Constitution the petitioner challenged an order passed by the learned Additional Sessions Judge, 3rd Court, Hooghly, in connection with Criminal Revision No. 17 of 2008, whereby the learned Judge dismissed the said revision and affirmed the order passed by the learned Judicial Magistrate, 4th Court, Hooghly Sadar, in connection with a proceeding under Section 125 of the Code of Criminal Procedure awarding maintenance @ Rs.700/- per month for her minor children. (2.) The learned Counsel appearing in support of this application challenged the order on the following grounds:- (a) On a simple arithmetical calculation of the days between the date of marriage and the birth of the child i.e. 260 days rebut the presumption under Section 112 of the Evidence Act, as to the legitimacy of the child. (b) The fact due to the continuous illness of the opposite party the marriage between the petitioner and herself was never consummated. (c) The relevant document filed by the petitioner to sustain his claim has not been taken into consideration by the Court bellows. (d) The Birth Certificate of the child was exhibited during the trial not in accordance with law. (3.) It is the further case of the petitioner/husband as it appearing from the submission made on his behalf that although the marriage was solemnised on 15th of July, 1998, but immediately after marriage she became ill and started vomiting and on being checked up by a local doctor on 17th of August, 1998 and after certain medical tests, it was found that she was pregnant for one and half months, which shows that before her marriage she was leading an adulterous life and the petitioner is not the father of the said child. It is submitted that the husband/petitioner is willing for a DNA Test and also agrees to bear all the expenses for the same. It is further submitted that the prayer for DNA Test was rejected on August 19, 1999 by the trial Court and then such order was affirmed by the Sessions Court on January 14, 2003 and then by the Honble High Court on March 31, 2006. It is further submitted that the prayer for DNA Test was rejected on August 19, 1999 by the trial Court and then such order was affirmed by the Sessions Court on January 14, 2003 and then by the Honble High Court on March 31, 2006. (4.) I further found one of the specific ground taken by the petitioner in the instant criminal revision is as follows:- "For that presumption of legitimacy of a child born during continuance of a valid marriage to repudiate the presumption it must be proved that the access was impossible or it must be shown by very convincing evidence that though opportunity existed there was no sexual intercourse during the period when the child must have been begotten." (5.) Heard the learned Advocate appearing on behalf of the petitioner, Perused the impugned orders as well as other materials-on-record. (6.) Invoking Article 227 of the Constitution the petitioner challenged an order, the legality and propriety whereof has been affirmed in a criminal revision. I have no doubt that obvious reason for invoking Article 227 of the Constitution to challenge the order, is to circumvent the statutory bar under Section 397 (3) of the Code of Criminal Procedure. When the learned Advocate of the petitioner was confronted with such an question in fact he has no reply to that and asserted that the scope under Article 227 of the Constitution is much wider than that of the jurisdiction conferred upon the High Court under Section 401 of the Code of Criminal Procedure. He further submitted it is left with the choice of the aggrieved person which particular provisions of law be resorted to challenge the legality and validity of a particular order. He further submitted in exercise of the constitutional writ jurisdiction this Court can enter into the factual aspects of the case and when it appears the order impugned suffers from illegality and infirmity nothing can prevent in exercising of such jurisdiction to nullify that order. (7.) In view of such submission of the learned Advocate of the petitioner this Court feels that it is very much essential in this matter to first examine as to what the law stands regarding the scope and power of the High Court under Article 227 of the Constitution to interfere with an order already affirmed by a competent revisional Court. (8.) In the case of Sadhana Lodh v. National Insurance Co. Ltd. and Anr., reported in AIR 2003 SC 1561, a three Judges Bench of the Honblt Apex Court held as follows:-"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervispry power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors c/f law in the decision." (9.) In the case of Miss Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, reported in AIR 1976 SC 2446 , another three Judges Bench amongst other held:-"It must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to High Court to do whatever it liked." (10.) Then again in the case of Mohan Amba Prasad Agnihotri and Ors. v. Bhaskar Balwant Aher (D) Through Lrs., reported in 2000 (3) SCC 190 , the Apex Court observed the jurisdiction of the High Court under Article 227 of the Constitution is not appellate but supervisory. It cannot interfere with a finding of fact recorded by a lower Court/Tribunal unless there is no evidence to support the finding or the finding is perverse. It cannot interfere with a finding of fact recorded by a lower Court/Tribunal unless there is no evidence to support the finding or the finding is perverse. (11.) In the case of State Through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru and Ors., reported in 2003 SCC (Cri) 1545, the Supreme Court, held that the power under Article 227 is a discretionary power and must be exercised sparingly and only to keep the subordinate Courts and Tribunals within the bonds of their authority and not to correct mere errors where the statute ban exercise of revisional power it would require very exceptional circumstance to warrant interference under Article 227 since the power of superintendence was not meant to circumvent statutory law. It is settled law that jurisdiction under Article 227 could not be exercised in the cloak of an appeal in disguise. (12.) Since, in the instant case there is a statutory bar under Section 397(3) of the Code of Criminal Procedure as, this is a second revision, thus it has to be seen whether the instant case there is any exceptional circumstances which warrants interference by this Court in exercise of its power under Article 227 of the Constitution. (13.) I find from the submissions made before this Court as well as the grounds relied upon in the revisional application, it is the case of the petitioner that the wife/opposite party was leading an adulterous life since before her marriage and the child in whose favour the maintenance has been awarded is the result of her conception before marriage and as such the order of maintenance granted in her favour is liable to be set aside. (14.) In the instant case, both the trial Court as well as the Court exercising revisional jurisdiction has come to a concurrent finding that the present petitioner has failed to prove that he had no access to the wife when the minor child was begotten. According to such concurrent finding it was never the case of the petitioner that he had no access and physical relations with the opposite party/wife in between their marriage and when she left her matrimonial home and thus the presumption under Section 112 of the Evidence Act is very much available in favour of the child in whose favour the maintenance has been awarded. I further found that no attempt was made on behalf of the present petitioner, the husband to examine the doctor who opined on 17th of August, 1998 when he examined the wife/opposite party she was found carrying for 5/6 weeks, nor the medical report, if any, was exhibited during the proceeding at his instance. In any event, mere filing of certain documents by way of firisthi would not make the said documents admissible in evidence and it is the duty of the party who is going to rely upon the same to get it exhibited in accordance with law. In this connection the trial Court recorded findings of the Honble Supreme Court in the case of Dukhtar v. Farooq, reported in 1987 Criminal Law Journal 849, where the Apex Court held that giving birth to a viable child after 28 weeks duration of pregnancy is not biologically improbable and impossible event. Top of everything concededly in this case the petitioner challenging the paternity of the child moved the trial Court for DNA Test. Not only the petitioners such prayer was turned down by the trial Court but the order of the trial Court was affirmed by the Sessions Court as well as by this Court. (15.) In exercising of my jurisdiction under Article 227 of the Constitution, I do not find any exceptional circumstances has been brought to notice of this Court so that the concurrent findings of two Courts is called for interference. Although, according to the decision of the Apex Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (supra), it is not for the High Court in exercise of his jurisdiction to review and re-weigh the evidence upon which the inferior Court purports to have passed the order or to correct an error apparent on the face of record much less an error of law, still I do not find that the impugned order suffers from any illegality or infirmity. (16.) This criminal revision has no merit and stands dismissed. (17.) If the petitioner fails to pay the maintenance to the child as awarded by the trial Court and in such a situation if the opposite party makes any application for enforcement of that order the learned Court below is directed to take steps forthwith in that regard in accordance with law. (17.) If the petitioner fails to pay the maintenance to the child as awarded by the trial Court and in such a situation if the opposite party makes any application for enforcement of that order the learned Court below is directed to take steps forthwith in that regard in accordance with law. (18.) Since this criminal revision is disposed of at the stage of listed motion, I feel that his order should be communicated to the opposite party. Accordingly, Office is directed to communicate this order to the opposite party at her address mentioned in the cause title as well as to the learned Court below by special messenger at once. 2009(1)CLJ (Cal)] Ashit Kumar Palit v, W. B. S. E. Distribution Co. 311 Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.