Calcutta High Court (Appellete Side)
Dr. Archana vs The State Of West Bengal & Anr on 2 February, 2021
1
02.02.2021
Sl.no. 1
P.M.
C.R.R. 1323 of 2019
+
CRAN 1 of 2019
(Old No. CRAN 2269/2019)
+
CRAN 2 of 2020
(Old No. CRAN 793 of 2020)
+
CRAN 3 of 2021
Dr. Archana
- vs -
The State of West Bengal & Anr.
Mr. Manjit Singh
Mr. Pawan Kumar Gupta
.... for the petitioner
Mr. Pratik Kumar Bhattacharyya,
Mr. Aniruddha Bhattacharyya
Mr. Ranabir Ray Chowdhury,
Mr. Mainak Gupta
... for the State.
Mr. Pratik Kumar Bhattacharyya, learned Counsel
moves an application arising out of CRR No. 1323 of 2019
on behalf of the de-facto Complainant/opposite party
no.2.
Heard learned counsel for all the parties.
A written notes of submission in support of the
application is also filed praying for an order restraining
the petitioner or any other person for taking advantage or
placing reliance in respect of the remark or observation
recorded in the order dated December 16, 2019,
December 23, 2019 and order dated January 7, 2020 with
the contention that order dated December 16, 2019 has
not been uploaded server of this Hon'ble Court and it has
mistakenly been recorded that an endevour for
reconciliation was made on December 16, 2019 as the
defacto complainant was neither personally present on
December 16, 2019 before this Hon'ble Court nor any
notice and/or intimation was received by him from his
erstwhile learned advocate to the above effect of any
reconciliation made by this Hon'ble Court on the aforesaid
date
It is also submitted that on the date of order dated
December 23, 2019, the opposite party no. 2 was neither
present on such date before this Hon'ble Court nor
represented by his learned Counsel and that observation
made in the order on submission of the petitioner that
the opposite party no. 2 is in a bigamous relationship
with issues out of such relation is prejudicial to the
opposite party no. 2 as the same can be relied by the
petitioner or any person before any authority in all
pending proceedings and the cases arising therefrom
including the instant criminal revision.
It is also contended that the order dated January 7,
2020 also reflects an observation that it has come out
from the reconciliation proceedings that the defacto
complainant is in a bigamous relationship with issues
and for that reason the reconciliation has been
unsuccessful with further observation that the opposite
party had already married another lady and have issues
in such wedlock and there is no scope left for
reconciliation in so far as restitution of conjugal right
between Dr. Archana and Rishikesh Meena is concerned.
Accordingly, it is submitted that above remarks
/observations is/are required to be deleted/expunged as
they are going to prejudice, if relied on by the petitioner
not already availed by anyone/person/authority(s) in all
pending proceedings and the case(s) arising out thereof
including the instant criminal revision. It is also pointed
out that the opposite party no. 2 has not yet been afforded
an opportunity to make out his case through verbal
submissions in contesting the said criminal revision.
In view of such submission made on behalf of the
opposite party no. 2, the orders aforesaid are reproduced
hereunder for profitable consideration.
Order dated 16.12.2019 reads thus :-
"Heard the submissions on behalf of both the parties. The
parties are present. They have been called for reconciliation in
the ante chamber. Reconciliation was effected by single session
and also in presence of both the parties. There is still scope for
reconciliation.
Therefore, let the matter stand over to December 23, 2019
for further consideration."
Thus, on bare reading of the order dated 16th
December, 2019 reflects that the parties were very much
present and represented by their learned Counsels. It
clearly spells out that parties were called for reconciliation
in the ante chamber and reconciliation was effected by
single session and also in presence of both the parties and
the Court observed that there is still scope for
reconciliation. According, another dated was fixed on 23rd
October 2019 for further consideration.
Order dated 23.12.2019 reads thus : -
"It appears from the order dated 16.12.2019 that
there was a meeting for reconciliation between the two
parties in respect of their dispute pending by and
between.
This Court found that there was a scope for
reconciliation but it is submitted that there is no chance of
reconciliation as the opposite party/husband has already
married another lady and has issues out of such wedlock.
Let the matter appear on 3rd January, 2020 under
the same heading for hearing on its merit"
The said order dated 23rd December, 2019 clearly
reflects that the opposite party no. 2 was not represented
by Mr. Debasish Roy learned Cousnel for opposite party
no. 2 and the observation made in the order is reflection
of the order dated 16th December, 2019 on the basis of
submission made by learned Counsel for the petitioner
present before the Court, to the effect that there was no
chance of reconciliation as opposite party no. 2/husband
already married another lady and has issues out of such
wedlock.
It is obvious that order so recorded is not in the
finding of facts about the bigamous relationship of
opposite party no. 2/husband with another lady having
issues out of such wedlock. It was so recorded on the
basis of submission made on behalf of the petitioner.
Order dated 7th January, 2020 reads thus:
"On the last day of hearing, that is, on December
23, 2019, the parties to the proceeding, namely, Dr.
Archana and Sri Rishikesh Meena had appeared before
me along with their respective learned advocates in the
ante chamber with an object to hold reconciliation in
respect of the dispute by and between them. As it
appears that the opposite party had already married
another lady and have issues in such wedlock, there is no
scope left for reconciliation in so far as restitution of
conjugal right between Dr. Archana and Rishikesh Meena
is concerned. Yet, the petitioner had insisted for
restitution of conjugal right.
In such circumstances, substantially, the
reconciliation has failed. There is no other alternative but
to take up the revisional application on its merit. However,
I grant one more opportunity to the parties to make efforts
to restitute their conjugal right.
List the matter on January 15, 2020 under same
heading."
The said order dated January 7, 2020 reflects that
the opposite party no. 2 was not present and not
represented by his learned Counsel and the order was in
presence of Mr. Pawan Kumar Gupta learned Counsel for
the petitioner.
I find that presence of parties to the proceeding on
December 23, 2019 has been recorded in the order
through inadvertence but the very order dated December
16, 2019 depicts that the parties with their respective
lawyers had attended for reconciliation. The observation
in the order dated January 7, 2020 about opposite party
no. 2 having married another lady and having issues out
of such wedlock was on the basis of submission made on
behalf of the petitioner on 23rd December, 2019.
Mr. Manjit Singh, learned Counsel for the petitioner
submits that the order aforesaid are revisable in nature
and the Court cannot sit on its order in revision and
refuted all the averments made in the CRAN application.
I am of the considered opinion that a judicial order
remains in effect until it is modified in writing and the
observation made by this Court in the said order dated
January 7, 2020 can be said to be out of knowledge of the
facts which come to the Court from submission of learned
Counsel of a party or from other sources, but such facts,
other than evidence, cannot be in accordance with law.
Ergo, the order dated January 7, 2010 stands
modified to this effect that the observation embodied in
the order is not on the finding of facts on evidence. Yet the
parties are at liberty to reconcile and resolve their dispute.
Accordingly, application being CRAN No. 793 of
2020 is disposed of with the above modification of order
dated January 7, 2020. Thus, all connected applications
stand disposed of.
I have already heard learned Counsel for the
petitioner and the State Counsel on merit and judgment
has been reserved. Now, heard learned Counsel for the
opposite party no. 2 at length on the merit of the case.
Mr. Bhattacharyya, learned Counsel for opposite
party no. 2 also submits for a day accommodation to
submit written notes of argument in connection with the
revisional application. Considered. Liberty is given to
submit written notes of argument by tomorrow.
( Shivakant Prasad, J.)
