Sumita Acharya vs State of West Bengal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 383

IN THE HIGH COURT AT CALCUTTA
SUBHENDU SAMANTA, J.
Sumita Acharya – Appellant
Versus
The State of West Bengal & Ors. – Respondents
CRR 3520 of 2018, IA No. CRAN 1 of 2020 With CRR 3571 of 2018
Decided on : 05-04-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Sabir Ahmed, Mr. Gouranga Kumar Das, Mr. Abdur Rakib, Ms. Suman Biswa, Ms. Swati Mondal,
For the Respondent: Mr. Mr. Sabir Ahmed, Mr. Gouranga Kumar Das, Mr. Abdur Rakib, Ms. Suman Biswas, Ms. Swati Mondal,

Headnote:
PWDV Act, 2005 - Section 12 - Code of Criminal Procedure,1973 - Section 362 - Restoration or recalling - Held, In a case of PWDV Act 2005 aggrieved party on any proo domestic relationship with other persons may pray necessary relief before jurisdictional Magistrate - Report of protection officer is essential ingredients to pass an order of PWDV Act - Petitioner intends to challenge in proceeding of a that he never married opposite party - For declaration of his marital status there are separate forum petitioner may prefer forum to ventilate his claim for proper redress but in a case PWDV Act it is not imperative for Magistrate to enter into merit of marital status of parties - disposed of.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

The case involves a revisional application filed against orders related to proceedings under the Protection of Women from Domestic Violence Act, 2005, specifically Section 12, and the related appellate judgments (!) .
The revisional applications were filed by both the wife and the husband, challenging the orders passed by the Magistrate and affirmed by the First Appellate Court (!) (!) .
The Court observed that the earlier order was passed ex parte but considered on merit, including the merits of the husband's case, and no clerical or arithmetical errors were found (!) .
The Court noted that the primary purpose of proceedings under the PWDV Act is to establish a domestic relationship, and the report of a Protection Officer is a crucial element in passing orders (!) .
The petitioner’s argument that the order should be set aside due to alleged lack of opportunity or procedural errors was rejected, as the Court found that proper service and opportunity were provided (!) .
The Court emphasized that in proceedings under the PWDV Act, the question of whether a marriage was legally solemnized is not necessarily determinative; proof of a domestic relationship suffices (!) .
The Court held that the challenge to the original order was barred under the applicable procedural provisions and that the order passed in the earlier revision was final and binding (!) .
The Court dismissed the revision applications, reaffirming that the orders of the Magistrate and the First Appellate Court were lawful and proper, and that the petitioner’s claims regarding the marital status were not relevant to the proceedings under the PWDV Act (!) .
The petitioner was directed to comply with the earlier Court order, and failure to do so could lead to legal consequences, including enforcement of the order (!) .
Connected pending applications, if any, were also disposed of, and any stay orders issued earlier were vacated (!) .

These points summarize the Court’s reasoning, procedural findings, and final disposition regarding the revisional applications under the PWDV Act.

JUDGMENT :

Subhendu Samanta, J.

1. CRR 3520 of 2018 has been preferred against the order dated September 15, 2018 passed by the learned First Appellate Court in Criminal Appeal No. 243 of 2017 affirming the order dated September 5, 2017 passed by learned Judicial Magistrate, 3rd Court, Alipore in Case No. C-9584 of 2013 under Section 12 of PWDV Act, 2005.

2. This criminal revisional application is disposed of by virtue of order of this Court dated February 27, 2020. One application being CRAN 1 of 2020 submitted by the opposite party for restoration or recalling of the order dated February 27, 2020.

3. CRR 3571 of 2018 has been preferred against the judgment dated September 15, 2018 passed by the First Appellant Court in criminal appeal No.202 of 2017 aggrieved by the judgment dated September 5, 2017 passed by the learned Judicial Magistrate, 3rd Court, Alipore in connection with complaint case No. C-9584 of 2013 instituted under Section 12 of PWDV Act, 2005.

4. CRR 3520 of 2018 was preferred by the wife and CRR 3571 of 2018 was preferred by the husband.

5. As both the criminal revisional application is based on the same order of learned Judicial Magistrate passed in same proceeding, so it is prudent to disposed of both criminal revisional application and connected CRAN application in the single judgment.

In Re. CRAN 1 of 2022

6. This is an application for restoration or recalling of the order passed by this Court on 27.2.2020. It is the submission of the learned advocate for the opposite party that due to some mis-communication, learned advocate could not appear in this matter. It is the specific averment of the learned advocate for the opposite party(husband) that the notice was served upon the opposite party but learned advocate could not reach the court on due time, thus, an ex parte order was passed. He further argued that there are several merits to entertain the instant criminal revisional application. The learned First Appellate Court never put any light over the merits of the claim of the present opposite party. Thus, the order passed by this Court ex parte need be set aside and the present opposite party may award an opportunity of being heard.

7. CRAN 1 of 2022 was contested by the present petitioner of this revision by filing affidavit-in-opposition. It is the submission of the learned advocate for the petitioner that the prayer under CRAN 1 of 2020 is barred under Section 362 of the Code of Criminal Procedure. Only inadvertent error and arithmetical error can be corrected otherwise if the opposite party is aggrieved by the order by this Court, he must have to prefer an appeal before the appropriate forum.

8. It is the further contention of the learned advocate for the petitioner that adequate opportunity was given the opposite party to appear. It would be revealed from the orders altogether that notice was specifically served upon the opposite party on several occasions. He further argued that the instant CRAN application was filed after ten months from date of passing of this order. It is dilatory tactics adopted by the husband who did not want to comply with the order of this Court. So, he prayed for rejection of the CRAN application.

9. Heard the learned advocate perused the CRAN application, affidavit-in-opposition and affidavit-in-reply filed by the husband.

10. It is true that the judgment of a Court cannot be altered except to correct a clerical or arithmetical error. The Code of Criminal Procedure is exhaustive and it has specifically mentioned the forum whether any order can be challenged. In perusing the impugned order in question dated February 27, 2020, it appears that this Court observed that affidavit of service was filed before this Court on the earlier several occasions. On perusing the earlier orders and perusing the Court records it appears that affidavit of service filed on the behalf of the petitioner was taken on record on several occasions and on all occasions the private opposite party i.e. the present

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