Smt. Santoshi Mahara vs The State Of West Bengal And ...
2021 Latest Caselaw 4092 Cal

D/L41. C.R.R. No.2530 of 2019 August 5, (Via Video Conference)

Bpg.

Smt. Santoshi Mahara Versus The State of West Bengal and Another

Mr. Tapan Datta Gupta, Mr. Parvej Anam.

...for the petitioner.

Mr. Sujoy Sarkar.

...for the opposite party no.2.

The present revisional application was preferred against

the judgment and order dated 29.05.2019 passed by the learned

Sessions Judge, Birbhum in Criminal Revision No.17 of 2018

wherein the learned Sessions Judge was pleased to affirm the order

dated 12.06.2018 passed by the learned Judicial Magistrate, 3rd

Court, Suri, Birbhum in Criminal Misc. Case No.170 of 2015.

Supplementary affidavit filed on behalf of the petitioner

enclosing the evidences is kept with the record.

I have perused the order passed by the learned

Magistrate and the reason so assigned. On an appreciation of the

same, I am of the view that the learned Magistrate has discretely

taken up the evidences from the cross-examination to come to its

own finding. The learned Sessions Judge also has approved such

manner of appreciation of evidence by the learned Magistrate.

I have considered both the judgments and on an

appreciation of the same, I am of the view that both the courts

below failed to take into account the background from which the

lady belonged and the system prevailing in the villages for a

complaint case to be registered. The interpretation of the courts

below so far as the wife is unwilling to stay with the husband do not

seem to be in consonance with the purpose for which the provisions

of Chapter VII of the Code of Criminal Procedure was incorporated.

A court of law has to appreciate overall circumstances. The learned

court, in my opinion, failed to take into account the allegations of

torture, the reasons for not staying with the husband as also the

factum of demand of dowry. The court also failed to consider that

the wife was restrained from taking the child back.

Hence, I am of the opinion that a fresh appreciation of

the evidence is required to be considered to arrive at a finding as to

whether maintenance should be awarded or not to the present

petitioner. Accordingly, the matter is remanded back to the learned

Judicial Magistrate, 3rd Court, Suri, Birbhum, who would freshly

consider the evidence and arrive at its own finding within a period

of sixty days from the date of the communication of this order.

The Department is directed to communicate this order to

the learned court below within a period of seven days.

The learned Magistrate thereafter would fix a date issuing

notice to both parties. To that effect, the learned Magistrate will be

at liberty to take assistance of the local police station for ensuring

the appearance of the parties.

CRR 2530 of 2019 is allowed with the aforesaid

directions.

Pending application, if any, is consequently disposed of.

Interim order, if any, is hereby vacated.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)