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CALCUTTA HIGH COURT
Nisith Kumar Batabyal, J.
Sm. Dipali Mallick - Petitioner
versus
Nirmal Mallick & Anr. - Respondents
Cr. R.N. 430 of 1992
Decided on 23.12.1992
Held, that the power of revision under sections 397/401 of the Code of Criminal Procedure is different from the revisional power or jurisdiction vested in the High Court under section 115 of the Cr. P.C. This scope of sections 397/401 of the Cr. P.C. is wider' in so far as the High Court can consider the correctness, legality or propriety of any finding sentence or order recorded or passed, and as to the regularity of any proceedings of an inferior court. But even so, this jurisdiction is not to be exercised in every case of impropriety or illegality, unless it causes failure of justice. As a broad proposition, it can be stated that interference may be justified where (a) the decision is erroneous, (b) where there is no compliance with the provisions of law, (c) where the finding of fact affecting the decision is not based on the evidence, (d) where materials evidence of the parties is not considered, and (e) where judicial discretion is exercised arbitrarily or perversely. (Para 10)
Held further, the learned Additional Session Judge has ignored the basic facts and has sifted the evidence afresh as if he was sitting in appeal over the order of the learned S.D.J.M. This was the basic defect in the approach of the learned Additional Session Judge. There was no grossly erroneous or perverse finding of fact in this case by the learned Magistrate which would justify the attempt of the learned Additional Session Judge for re-appreciating the evidence. Therefore, the learned Additional Session Judge had no reason to interfere with the findings of the learned S.D.J.M. in refusal. (Para 15)
Result: Revision Allowed.
JUDGMENT
Nisitu Kumar Batabyal, J. - This Criminal revision arises out of an application under sections 397/40l/482of the Cr. P.C. and is directed against the judgment and order dated 23.12.1991 passed by Shri R. Mukhopadhyay, the learned 2nd Additional Session Judge at Barasat, North 24-Parganas in Criminal Revision No. 59 of 1991 reversing the Judgment and order dated 17.1.1991 passed by Shri M.M. Ghosh, learned S.D.J.M., Barrackpore in Misc. Case No. M 15 of 1998 under Section 125 of the Cr. P.C. granting maintenance at the rate of Rs. 300/- (Rupees three hundred only) per month to the wife.
2. The case of the revision petitioner is that she was married with the O.P. No. 1 according to Hindu Rites on 12 March, 1986. From the very beginning of their marriage life, she noticed that her husband had illicit connection with his aunt who resided in the same quarter. The petitioner objected to such indecent conduct but the O.P. threatened her and used filthy language against her. The husband did not allow her to move out of the room and used to spent his time mostly in the association of his aunt. The petitioner visited her father's house in May, 1986 but when she returned, the O.P. No. 1 refused her entry into the quarter and threatened her with dire consequences. She was forced to go back to her father's house. She again came back to her husband's place with her brother but the O.P. No. 1 refused her entry. She was threatened with assault, she lodged an information with the local Police Station.
3. She also informed the Department a Officer of the O.P. No. 1 for protection. At the order of the Departmental Officer, the petitioner was allowed to live in the official quarter of the O.P. No. 1 who paid maintenance to her for a few months through money order but stopped further payment after August, 1987. The petitioner has no source of income so she came to her farther's place keeping the quarter under lock and key. The opposite party is attached to the State Army Police, 3rd Battallion at Barrackpore and draws a salary of Rs. 1,500/- per month.
4. The revision petitioner filed an application under Section 125, Cr. P.C. in the Court of The learned S.D.J.M., Barrakpore for maintenance. The husband, O.P. No. 1 contested the Misc. Case denying the material allegations contained in the petition, he admitted the fact of marriage. He stated that he was brought up by his uncle and aunt since his child-hood and he regarded his aunt as his mother. The petitioner could not tolerate the presence of the said uncle and aunt in the quarter in which the petitioner used to live. The residential quarter of the petitioner is composed of two rooms, one of which is used by the petitioner himself and the other by his uncle and aunt. He has denied he ever misbehaved with his wife as alleged.
5. The learned S.D.J.M. allowed the application for maintenance and directed the O.P. No. 1 to pay maintenance to the revision petitioner at the rate of Rs. 300/- per month will effect from August, 1988. He also directed that the arrear amount be paid ill 25 equal monthly instalments beginning from the month of March 1991.
6. Being aggrieved by and dissatisfied with the order passed by the learned S.D.J.M., Barrackpore, the husband preferred a revisional application in the Court of the learned Additional Session Judge at Barasat. The Same was registered as Criminal Revision No. 59 of 1991 of the learned 2nd Additional Session Judge at Barasat. The learned Additional Session Judge has allowed the revisional application on contest and has set aside the impugned order of the learned S.D.J.M., Barrackpore.
7. Being aggrieved by and dissatisfied with the said order passed by the learned Additional Session Judge, Barasat, the wife petitioner has come before this Court in revision challenging the order of the learned Additional Session Judge on the ground that the order is wholly illegal and improper; that the learned Judge erred in holding that the wife-petitioner left th
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