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2010 DIGILAW 672 (GAU)

Jalaluddin v. Junaki Begum

2010-08-31

B.D.AGARWAL

body2010
This Revision application under section 397 read with Section 401of the Code of Criminal Procedure 1973, has been filed by the husband challenging the legality and correctness of the Judgment and order dated 31.10.2009 passed by Sri A Hakim, learned SDJM, Sankardev Nagar, Hojai in M R Case No. 262 of 2007 whereby the learned Magistrate has granted maintenance allowance to the 1st party and her minor child @ Rs.1500/-each per month under section 125 of the Code of Criminal Procedure. 2. I have heard Mr. A K Purkashtya, learned counsel for the petitioner and Mr. A J Atia, learned counsel for the wife/opp.party. I have also perused the impugned judgment and the pleadings and evidences of both the parties, tendered in the Trial Court. 3. The impugned Judgment has been basically assailed on the ground that the judgment has been passed on the basis of foreign and non-concerned evidences. 4. Mr. Purkashthya, submitted that in the Trial Court only 2(two) witnesses were examined on behalf of the 1st party namely Junaki Begum and her mother Musstt. Nehara Begum as PW-1 and PW-2 and the 2nd party examined himself as DW-1 and his brother Abdul Khayar as DW-2. H owever, while rendering the judgment, Leaned Magistrate relied upon the testimony of one Asish Sen as PW-2 and the testimony of one Suman Dey and Dipali Dey as DW- 1 and DW-2 respectively and as such the impugned Judgment suffers from perversity and gross negligence. 5. Although Mr. Atia, learned counsel for the Opposite party admitted the fact that statements of some persons, not tendered by either party, in the Trial Court have been relied upon by learned Sub-Divisional Judicial Magistrate, I myself cross- checked the aforesaid anomaly with the original record. 6. The record of MR Case No. 262/2007 under section 125 Cr.P.C. shows that no witnesses by name Ashish Sen, Suman Dey or Dipali Dey were examined by either side. Besides this, the wife/1st party deposed in her evidence that her dependant was a male child whereas PW-2, that has been referred in the impugned judgment, speaks about girl child borne to the 1st party. The perversity in the impugned Judgment continued till the end. PW-1/1st party had specifically deposed in her chief _examination that her husband was doing betelnut business and having two numbers of trucks and a grocery shop and his total income was Rs. The perversity in the impugned Judgment continued till the end. PW-1/1st party had specifically deposed in her chief _examination that her husband was doing betelnut business and having two numbers of trucks and a grocery shop and his total income was Rs. 30,000/- to 40,000/-, whereas, while discussing the testimony of PW-1, the learned Magistrate has mentioned about 'Night Super bus' and he is totally silent about betelnut business. Not only that both in the claim application as well as in the oral deposition, 1st party prayed for total maintenance allowance of Rs. 3,500/-, whereas, in the impugned judgment, the learned Magistrate has stated that the 1st party is praying for a sum of Rs. 5000/- for herself and Rs.2000/- for her child. 7. As noted earlier, learned SDJM has imported statements of 3(three) witnesses, not examined in the case. Had the impugned judgment suffered from perversity only for relying upon the testimony of few persons from outside the record, I might have taken a view that the learned Magistrate wrote the judgment in two sittings and by mistake in the 2nd sitting, record of some other case was taken in hand wherein the deposition of Asish Sen, Suman Dey and Dipali Dey were recorded. However, the learned Magistrate has also quoted wrong facts and figures from the testimony of 1st party herself. Hence, I find no hesitation to hold that the impugned judgment has been written with total mis-conception of facts and non-application of mind and the judgment can be termed as criminal negligence on the part of the learned Magistrate. 8. In view of the absurdity in the judgment and gross negligence on the part of the learned Magistrate, the impugned judgment is hereby set aside . The learned SDJM, Sankardev Nagar, Hojai is directed to pass a fresh judgment on the basis of the pleadings and evidence recorded in the MR Case No. 262 of 2007 within a period of 4 (four) weeks from the date of receipt of the LCR. 9. The Registry is directed to send back the LCR with a copy of this Judgment immediately. 10. A copy of this Judgment be also be forwarded to the concerned SDJM. 11. 9. The Registry is directed to send back the LCR with a copy of this Judgment immediately. 10. A copy of this Judgment be also be forwarded to the concerned SDJM. 11. At the same time the Registry is further directed to place a copy of this Judgment along with one set of photocopy of the depositions of PW-1, PW-2, DW-1 and DW-2 to the Hon'ble Portfolio Judge of Nagaon District for His Lordship's perusal and proper action.