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2012 DIGILAW 594 (CAL)

Biswajit Saha v. State

2012-07-06

DIPAK SAHA RAY

body2012
JUDGMENT: DIPAK SAHA RAY, J. 1. THE present case arises out of an application under Section 401/397 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure, 1973. 2. IT is directed against the Order dated 13.9.2010 passed by the learned Judicial Magistrate, First Class, Nadia in Misc. Case No. 234 of 2007 under Section 125 of the Code of Criminal Procedure allowing the maintenance in favour of Jayanti Saha. 3. THE relevant facts of the present case are, in a nutshell, as follows: 4. THE opposite party No. 2 as petitioner initiated a proceeding for maintenance under Section 125 of the Code of Criminal Procedure against her father praying for maintenance of Rs. 1500 p.m. as her mother who was also a minor had no independent source of income and was unable to maintain the petitioner. The said case was registered as Misc. Case No. 234 of 2007. In the said Misc. Case, the petitioner viz. Jayanti Saha alleged inter alia that Biswajit Saha committed rape on her mother viz. Shukla Debnath who was then also minor; as a result, she became pregnant and ultimately, she gave birth to the petitioner/O.P. No. 2 herein. Accordingly, she was the illegitimate daughter of Biswajit Saha and was entitled to get maintenance as per the provisions of Section 125 of the Code of Criminal Procedure, 1973. 5. AS against this, O.P. Biswajit Saha/petitioner herein contested the case by filing written objection wherein the material allegations made by the petitioner had been denied. It was the case of O.P./Biswajit Saha that Jayanti Saha was not his daughter and he had no connection with her and as such she was not entitled to get any maintenance from him. Dismissal of the application was so prayed for. 6. THE petitioner in the said Misc. Case, in order to establish her case, examined two witnesses including her grand-father and mother as PWs 1 and 2 respectively. The O.P. Biswajit Saha in support of his case also examined himself as O.P.W. 1. 7. AFTER taking into consideration of all relevant facts and evidence on record, the learned trial court passed an order on 13.9.2010 granting maintenance of Rs. 1500/- p.m. in favour of the petitioner from the date of filing the case. 8. The O.P. Biswajit Saha in support of his case also examined himself as O.P.W. 1. 7. AFTER taking into consideration of all relevant facts and evidence on record, the learned trial court passed an order on 13.9.2010 granting maintenance of Rs. 1500/- p.m. in favour of the petitioner from the date of filing the case. 8. BEING aggrieved by and dissatisfied with the impugned order the O.P. Biswajit Saha has preferred the instant revisional application. 9. IT is the case of the petitioner that the learned trial court failed to appreciate the evidence on record in its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned trial court without taking notice of the fact that a criminal case under Section 376 IPC which was initiated by Shukla Debnath (the mother of O.P. No. 2 herein) on the allegation that she was raped, is still pending before the learned Sessions Court and as such it has not been decided as to whether the mother of the present O.P. No. 2 was at all raped by the petitioner herein/ Biswajit Saha. 10. AFTER taking into consideration all relevant facts and materials and giving due regard to the submission made by the learned counsel for both the parties, I think that the only point requiring adjudication is whether or not the impugned order dated 13.9.2010 passed by the learned Judicial Magistrate, Nadia is liable to be set aside. 11. THERE is no controversy that a criminal case under Section 376 IPC was initiated by Shukla Debnath, the mother of the O.P. No. 2 herein which is pending before the learned Sessions Court. 12. THE controversy mainly relates to the question as to whether Jayanti Saha is the illegitimate daughter of Biswajit Saha. 13. IT is submitted by the learned counsel for Biswajit Saha that until and unless the petitioner is convicted in the said Sessions case, it cannot be said that he committed rape upon the victim. So, at this stage, O.P. No. 2 herein cannot be said to be the illegitimate child of the present petitioner. It is further contended that as it is not proved that she is an illegitimate child of O.P. No. 2, she is not entitled to get any maintenance as per the provisions of Section 125 of the Code of Criminal Procedure. 14. It is further contended that as it is not proved that she is an illegitimate child of O.P. No. 2, she is not entitled to get any maintenance as per the provisions of Section 125 of the Code of Criminal Procedure. 14. THE learned counsel for O.P. No. 2, on the contrary, has submitted that Section 125 of the Code of Criminal Procedure is a measure of social justice falling within the constitutional sweep of Articles 15(3) and 39 of the Constitution of India and specially enacted to protect the weaker sections like women and child; so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. It is further submitted that Section 125 of the Code of Criminal Procedure has been enacted for the benefit of the wife and child and as such the O.P. No. 2 is still entitled to get maintenance for her survival even during pendency of the said criminal case. 15. THE learned Magistrate in the said Misc. Case, after considering the evidence on record, has come to a conclusion that the petitioner/ O.P. No. 2 herein being the illegitimate daughter of Biswajit Saha, is entitled to get maintenance for her survival. In the said Misc. Case, Shukla Debnath, the mother of the petitioner, in her evidence has stated that Biswajit Saha used to visit her house and taking advantage of the absence of family members he committed rape on her several times. As a result, she became pregnant and gave birth to a child, viz., Jayanti Saha. 16. IT further appears that she also lodged FIR with the Police and a criminal case under Section 376 IPC was started against Biswajit Saha/petitioner herein. The I.O. investigated the case and after completion of investigation, he submitted charge sheet against the accused Biswajit Saha under Section 376 IPC. So, it is evident that during investigation a prima facie case has been made out against the accused Biswajit Saha. So, it can safely be said that at the time of investigation, Police collected sufficient evidence and materials from which a prima facie case has been made out. So, it is evident that during investigation a prima facie case has been made out against the accused Biswajit Saha. So, it can safely be said that at the time of investigation, Police collected sufficient evidence and materials from which a prima facie case has been made out. Considering the above fact that a prima facie case has been made out in the said criminal case and considering also the evidence of PWs 1 and 2, the contention of the petitioner that she is the illegitimate daughter of Biswajit Saha cannot be brushed aside under the carpet. 17. IN this context it is to be kept in mind that Code of Criminal Procedure contends substantive provision for providing immediate relief to the destitute wives, parents and children. This part of the Code of Criminal Procedure is a beneficial legislation for the welfare of the weaker Section. It is also well settled that "in this generous jurisdiction, a broader perception and appreciation of facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof." 18. IN view of the above facts and circumstances and the discussions made above, I find no merit in the present revisional application which accordingly must be dismissed. 19. ACCORDINGLY, the instant revisional application fails. CRR No. 1080 of 2011 is dismissed and in the nature and background of the case without cost. 20. THE impugned order dated 13.9.2010 passed by the learned Judicial Magistrate, Nadia in Misc. Case No. 234 of 2007 under Section 125 of the Code of Criminal procedure is accordingly affirmed. 21. LET a copy of this judgment be sent to the learned trial court for information and necessary action. 22. URGENT Photostat certified copy of this judgment be supplied to the parties, if applied for, subject to compliance with all necessary formalities.