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2009 DIGILAW 141 (CAL)

Mb. Hasib v. Sabina Khatun

2009-02-24

PARTHA SAKHA DATTA

body2009
Judgment :- (1) Heard Mr. S. Dutta, learned Advocate appearing for the petitioner and Mr. S. Banerjee, learned Advocate appearing for the O.P. No.1. (2) Mr. Duttas client was an opposite party in a case of maintenance under Section 125, Cr.P.C. initiated by the client of Mr. S. Banerjee. It is submitted by Mr. Dutta, learned Advocate that his clients case is that the petitioner has pronounced "Talaq" against the wife and no more there is any existence of marital relationship between the parties. It is submitted that a suit was instituted before the learned Civil Court by the petitipner praying for declaration that the petitioner is no longer the husband of the opposite party and in connection with the said civil suit, an Advocates letter was produced as one of the documents on behalf of the plaintiff/petitioner. The stage was reached for cross-examination of the opposite party and the petitioner moved an application before the learned Magistrate praying for calling for the record of suit No. 20 of 2006 now pending before the learned Civil Judge, Junior Division, 2nd Court, Malda. Though the order dated 25.9.08 has been said to be the impugned order, I dont think that could really be the impugned order. The impugned order if at all is there any may be the order dated 4.11.08, The learned Magistrate by the order dated 4.11.08 allowed the prayer for adjournment of the petitioner so as to facilitate him to file certified copy of the required document and fix a date for cross-examination of P.W.1. It is submitted that without disposing of the application wherein the prayer was made for calling for the record of the civil suit, the learned Magistrate directed the petitioner to file the certified copy of the documents. (3) I have heard Mr. S. Banerjee, learned Advocate appearing for the opposite party No.1 who supports the magisterial order submitting that the learned Magistrate committed no illegality in making such direction. (4) It appears in course of hearing that an order was passed in civil suit against which the present petitioner as the plaintiff moved the High Court in revisional jurisdiction. In this revisional application under Section 482, Cr.P.C. it has been stated that the record of the civil suit being O.C. No. 20 of 2006 has been sent to the High Court but Mr. In this revisional application under Section 482, Cr.P.C. it has been stated that the record of the civil suit being O.C. No. 20 of 2006 has been sent to the High Court but Mr. Dutta, learned Advocate for the petitioner submits that it is not so and the record is lying with the District Court. Only stay has been granted by this Court in connection with the revisional application. (5) Having perused the orders of the learned Magistrate dated 25.9.08 and 4.11.08, I do not find that the learned Magistrate has committed any illegality. The learned Magistrate has rightly directed the petitioner to produce the certified copy of the documents which the petitioner wants to have the same exhibited before the learned Magistrate as a piece of evidence on behalf of the opposite party of that case. If in course of hearing of the case the learned Magistrate is of the opinion that the record of civil suit needs to be called for, the learned Magistrate has jurisdiction to make such order. This Court cannot direct the learned Magistrate to call for the record of the civil suit which in its entirety is not at all relevant for the purpose of adjudication of an application under Section 125, Cr.P.C. It is not understood why the petitioner is not making an application before the learned Civil Judge, Junior Division at Malda to have a particular document withdrawn from the record of the case on undertaking to re-file the same for the purpose of getting the document admitted in evidence in accordance with law before the learned Magistrate at the time of the trial of the case under Section 125, Cr.P.C. The petitioner has neitherfiled the certified copy of the document nor has applied before the learned Civil Judge for withdrawal of the document so as to have it exhibited before the learned Magistrate particularly when the trial of the suit has not yet commenced and the document has not yet been marked exhibited before the learned Civil Judge, Jr. Division. There cannot be any straightway direction upon the learned Magistrate for calling for the record from a different Court unless the Magistrate is satisfied after production of the certified copy of the document that really production of the original record is necessary. Division. There cannot be any straightway direction upon the learned Magistrate for calling for the record from a different Court unless the Magistrate is satisfied after production of the certified copy of the document that really production of the original record is necessary. (6) Therefore, I dispose of the application with the direction that the petitioner herein will produce the certified copy of the document or produce the original document, if so advised by withdrawing the same from the Civil Court and if at any stage of hearing the learned Magistrate at all thinks that production of the original record is necessary then the learned Magistrate may pass an appropriate order in accordance with law. (7) Since the matter is pending for a long time the proceedings under Section 125, Cr.P.C. must not brook any further delay.