Rajen Kumar, son of Gauri Shankar Prasad v. State of Jharkhand
2016-05-11
ANANDA SEN, D.N.PATEL
body2016
DigiLaw.ai
ORAL ORDER : Per D.N. Patel, J. - Office defects pointed out by the Registry of this Court are ignored. 2. This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(C) No. 4949 of 2013 vide order dated 13th April, 2015 whereby, the petition preferred by these appellants was dismissed by the learned Single Judge. 3. These appellants are the original petitioners of W.P.(C) No. 4949 of 2013. In the writ petition notice issued by the Sub-Divisional Officer, Ranchi dated 31st July, 2013 was under challenge. 4. The notice issued by the Sub-Divisional Officer, Ranchi was to the effect that a Complaint Case No. 2798 of 2008 was preferred before the Judicial Magistrate, 1st Class, Ranchi under the Protection of Women from Domestic Violence Act, 2005 because these appellants, who are husband and wife, are not keeping the mother of appellant no.1 in the house. Hence, the Judicial Magistrate, 1st Class, Ranchi has passed an order in Complaint Case No. 2798 of 2008 on 9th August, 2010 for giving two rooms from the house of these appellants to the mother viz. Smt. Surat Prasad of appellant no.1. 5. It appears that the order, passed by the Judicial Magistrate, Ranchi was not complied with by these appellants and they preferred Cr. Appeal No. 130 of 2010 before the Sessions Court and the same was dismissed by the Sessions Court vide order dated 25th November, 2011. Against this order, these two appellants preferred criminal revision application before this Court bearing Cr. Revision No. 853 of 2011 and this High Court has dismissed the criminal revision application. Thus, the order passed by the Judicial Magistrate, 1st Class, Ranchi dated 9th August, 2010 has attained its finality for giving two rooms to Smt. Surat Prasad, who is mother of appellant no. 1. 6. Despite the order of the Judicial Magistrate, in Complaint Case No. 2798 of 2008 dated 9th August, 2010 and despite the fact that the criminal appeal and the criminal revision applications preferred by these appellants were dismissed the order passed by the Judicial Magistrate, Ranchi was not complied with and hence, the Sub Divisional Officer, Ranchi issued a notice on 31st July, 2013, which is at Annexure 1 to the memo of this LPA.
This Notice was challenged in the writ petition by these appellants in W.P.(C) No. 4949 of 2013, which has been dismissed by the learned Single Judge and hence, this Letters Patent Appeal has been preferred by the original writ petitioners. 7. Having heard counsel for the appellants and counsel for the respondent-State and looking to the facts and circumstances of the case, it appears that under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the mother of appellant no.1 has got all right to reside where this appellant no.1, who is son, is residing. For ready reference Section 12 of the Protection of Women from Domestic Violence Act, 2005 reads as under: "12. Application to Magistrate.(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a such for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off. (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. (5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing." 8. Looking to the order, passed by the Judicial Magistrate, 1st Class, Ranchi, in Complaint Case No. 2798 of 2008, the witnesses were examined and they were cross-examined also and ultimately, the detailed speaking order has been passed by the Judicial Magistrate, 1st Class, Ranchi and it has been held by Judicial Magistrate, 1st Class, Ranchi to give accommodation to the mother of appellant no.1. 9. It further appears from the facts of the case that criminal appeal and criminal revision applications have also been dismissed. Thus, no error has been committed by the learned Single Judge in dismissing the writ petition preferred by these appellants vide order dated 13th April, 2015. The order passed by the Judicial Magistrate, 1st Class in Complaint Case No. 2798 of 2008 is now required to be complied with by these appellants for which notice has been issued by the Sub Divisional Officer, Ranchi dated 31st July, 2013. 10. It is also submitted by the counsel for the appellants that one tenant viz. Pardeshi Toppo is also inducted as tenant. Thus, these appellants are ready to keep a tenant, but, not their own mother. This is a behaviour of the son, who is appellant no.1. It ought to be kept in mind that mother is not staying with a son rather the son is staying with his mother. 11. In view of the aforesaid facts and reasons, no error has been committed by the learned Single Judge in dismissing the writ petition being W.P.(C) No. 4949 of 2013 vide order dated 13th April, 2015. We see no reason to take any other view than what is taken by the learned Single Judge in dismissing the writ petition. 12. There is no substance in this Letters Patent Appeal and hence, this Letters Patent Appeal is hereby, dismissed with a cost of Rs. 10,000/- (Rs.
We see no reason to take any other view than what is taken by the learned Single Judge in dismissing the writ petition. 12. There is no substance in this Letters Patent Appeal and hence, this Letters Patent Appeal is hereby, dismissed with a cost of Rs. 10,000/- (Rs. Ten Thousand only) which will be deposited by appellant no.1 before the Jharkhand High Court Middle Income Group Legal Aid Society, Nayay Sadan, Doranda, Ranchi within a period of four weeks from today. 13. Registrar General of this Court is directed to send a copy of this order to the Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi initially by 'FAX' and thereafter by registered post with A/D. Appeal dismissed.