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2021 Supreme(Cal) 99
IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Apu Kundu - Appellant
Versus
State Of West Bengal - Respondent
C.R.R. No. 601 of 2021
Decided On : 16-03-2021
Phiroze Edulji, Advocate, Jagadish Chandra Majumdar, Advocate, Shibji Kr Das, Advocate, Soumajit Das Mahapatra, Advocate, Rupsa Sreemani, Advocate, Aishwarya Chatterjee, Advocate, Ayan Bhattacharyya, Advocate, Avik Ghattak, Advocate, S. De Dhara, Advocate
The central legal point established in the judgment is the importance of upholding the principle of natural justice, specifically the right to be heard, and the duty of the court to ensure that both parties have the opportunity to present their case.
Headnote:
Natural Justice - Criminal Revision - Protection of Women from Domestic Violence Act, 2005 - [Spackman vs. Plumstead District Board of Works,1985 10 AC 229 :54 LJMC 81.]
Fact of the Case:
The case involved a criminal revision to determine if the essential principle of natural justice, audi alteram partem, was violated by the trial court in a case related to the Protection of Women from Domestic Violence Act, 2005. The petitioner, the husband, was accused under various sections of the Indian Penal Code and a proceeding under the said Act was pending before the Judicial Magistrate for interim monetary relief for the maintenance of their child.
Finding of the Court:
The court found that the trial judge did not give an opportunity of hearing to the petitioner, and the order of closure of the hearing of the appeal and subsequent delivery of judgment was illegal and suffered from material irregularity.
Issues: The main issue was whether the trial court violated the principle of natural justice by not giving the petitioner an opportunity to be heard.
Ratio Decidendi: The court held that the conduct of the petitioner's advocate was unsatisfactory, but the petitioner should not suffer for the act of his advocate. The trial judge should have fixed a date for the hearing of the appeal after receiving the copy of the order of the criminal revision, and the petitioner should have been given an opportunity to submit his case.
Final Decision: The criminal revision was allowed without cost, the judgment and order dated 25th February, 2021 were set aside, and the lower appellate court was directed to fix the appeal for hearing on a suitable date. If the advocate for the opposite party fails to advance argument on the date fixed, the lower appellate court is at liberty to deliver the judgment exparte.
JUDGMENT
Bibek Chaudhuri, J. - "No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a Judge in the proper sense of the word : but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice". [Spackman vs. Plumstead District Board of Works,1985 10 AC 229 :54 LJMC 81.]
2. In the instant criminal revision only question for adjudication is as to whether one of the essential principles of natural justice, viz audi alteram partem was violated by the learned trial court and if so, whether the impugned order suffers from patent illegality or material irregularity.
3. It is not in dispute that the petitioner is the husband of the opposite party No.2. Admittedly also in the wedlock between the petitioner and the opposite party No.2, a child was born and he is maintained by the opposite party No.2.
4. After the birth of the child, relation between the parties started to deteriorate which compelled the opposite party No.2 to file a complaint before the Officer-in-Charge Jagaddal P.S. A case bearing No.47 of 2018 under Sections 498A/494/420/406/120B/34 of the Indian Penal Code was registered against the petitioner. The opposite party No.2 has also instituted a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereafter describe as the said Act) which was registered as Misc Case No.12 of 2018 and is presently pending before the learned Judicial Magistrate, 1st Court at Barrackpore. In the said proceeding, opposite party No.2's prayer for interim monetary relief for maintenance of the son of the parties was allowed under the provision of Section 23 of the said Act and the opposite party was to directed to pay a sum of Rs.3000/- per month for the maintenance of their child in favour of the opposite party No.2.
5. The opposite party No.2 assailed the said order passed by the learned Judicial Magistrate, 1st Court at Barrackpore in Misc Case No.12 of 2018 by filing Criminal Appeal No.14 of 2019 before the learned Additional Sessions Judge, Fast Track, 4th Court at Barrackpore.
6. In course of hearing of the aforesaid Criminal Appeal No.14 of 2019, an adjournment was sought for on behalf of the respondent/petitioner herein on 19th January, 2021 on the ground of personal inconvenience of the learned Advocate who represents the respondent/petitioner herein. It was stated that he was busy in a sessions trial under the direction of this Court. Prayer for adjournment was allowed by the learned Judge in Appeal subject to payment of cost of Rs.10,000/- and the next date fixed on 2nd February, 2021. On 2nd February, 2021 the learned Court below closed the argument and fixed 23rd February, 2021 for delivery of judgment. The respondent/petitioner herein filed CRR No.232 of 2021 challenging legality, validity and propriety of the said order dated 2nd February, 2021 on the ground that the petitioner was not given the opportunity of being heard.
7. Coordinate Bench of this Court observed as hereunder :-
"A right of hearing is too precious a right that is required to be scrupulously respected. It is a fundamental right of a litigant guaranteed by our Constitution".
8. In the said order the Coordinate Bench observed that the petitioner took adjournment of hearing of the appeal on several occasions. However for the interest of justice the revision court granted another opportunity of hearing as a last chance.
9. Accordingly CRR No.232 of 2021 was disposed of
