Point of Law: As per Section 29 of D.V. Act there shall lie an appeal to Court of Sessions within 30 days from date of which order made by Magistrate is served on aggrieved person or respondent.

JUDGMENT :

1. Heard Mr. O.P. Bhati, learned counsel for the petitioner and Mr. M.K. Sarma, learned counsel for respondent Nos. 1 and 2.

2. The petitioner has filed an application u/s 401 of the Code of Criminal Procedure (Cr.PC for short) read with Section 227 of the Constitution of India challenging the validity of the order dated 28.10.2022 passed by the learned Sub-Divisional Judicial Magistrate No. 1, Kamrup (M), Guwahati in Misc. Case No. 40M/2014, Guwahati whereby the prayer of the petitioner ‘X’ (name withheld) for recalling the order dated 14.03.2022 has been rejected.

3. The learned counsel for the respondents has submitted that the original petition was filed u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act for short) and the order was passed on 14.03.2022. This petition is not maintainable as only appeal lies against an order passed in connection with any petition filed u/s 12 of the D.V. Act.

As per Section 29 of the D.V. Act –

“there shall lie an appeal to the Court of Sessions within 30 days from the date of which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.”

4. However, it is submitted on behalf of the petitioner that Section 401(5) Cr.PC reads:–

“Where under this Court an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition for appeal and deal with the same accordingly.”

5. The learned counsel for the respondents has stated that even if the revision is treated as appeal, this revision is barred by limitation as the impugned order was passed on 14.03.2022 and the present petition was filed on 21.01.2023 i.e. after a lapse of 10 months.

6. The application u/s 12 is marked as Annexure-B. The petitioner ‘X’ is the aggrieved and the respondent No. 1 is her husband and respondent no. 2 is her father-in-law. It is submitted on behalf of the respondents that instead of preferring an appeal a revision was preferred and that too after a delay of 10 months without a petition with prayer for condonation of delay. The impugned order dated 14.03.2022 is reproduced herein below verbatim:

“Aggrieved is against absent today showing cervical spondylitis and pyrexia as ground vide petition 3297/22 and it has been submitted that she is not in a position to appear in the Court today. A payer has been made to allow the aggrieved to be represented by her counsel for today

The respondents are being represented vide petition 3299 and Rs.14000 in cash has been deposited today and the same is received by the Ld Counsel for the aggrieved on her behalf

Today was fixed for payment and cross of PWs.

Perusal of CR reveals that the aggrieved was accorded a final opportunity to present her witnesses today to face the cross examination and it was made clear that in the event of failure to do so, the evidence of the aggrieved shall not be considered while deciding the case.

Today, though ground of absence of the aggrieved has been shown, no prayer for adjournment has been made nor there has been any ground shown why the other PWs of the case have not be presented.

This case has been dragging on since the year 2014 and till date the cross examination of PWs has not been completed though the case has been listed for cross examination since 2015.

It appears that the only interest of the aggrieved is getting the maintenance and no effort has been made to ensure that the case reaches the final conclusion.

Hence in absence of any PWs today, the evidence of the aggrieved stands closed without the respondents side getting any opportunity to cross examine the PWs.

Fix 27.05.2022 for DWs.”

7. Thereafter this case proceeded for defence evidence and date was fixed on 27.05.2022.

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