Shreya Beria vs Vedant Bhagat
2021 Latest Caselaw 317 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                             C.R.R 853 of 2020

                               Shreya Beria
                                    -Vs-
                               Vedant Bhagat

     For the Petitioner:              Mr. Sabyasachi Banerjee, Adv.,
                                      Mr. Ayan Bhattacharjee, Adv.,
                                      Mr. Soumen Mohanty, Adv.,
                                      Mr. Hera Nafis, Adv.


     For the Opposite Party:          Mr. Sandipan Ganguly, Adv.,
                                      Mr. S.D Mazumder, Adv.,
                                      Mr. Depanjan Dutta, Adv.



Heard on: 14th January, 2021.
Judgment on: 20th January, 2021.

BIBEK CHAUDHURI, J. : -

1.   The   wife/petitioner    has   filed   the   instant   criminal   revision

challenging legality, validity and propriety of the order dated 24th

February, 2020 passed in Criminal Appeal No.33 of 2020 by the learned

Sessions Judge, South 24 Parganas at Alipore staying operation of the

order passed by the learned Judicial Magistrate, 9th Court at Alipore in

Misc Case No.AC 4538 of 2019 under Sections 12/23 of the Protection of
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Women from Domestic Violence Act, 2005 (hereafter described as the said

Act) directing the opposite party to provide a suitable accommodation to

the petitioner (aggrieved person) in the shared household, if the aggrieved

person is willing to stay.

2.    For proper adjudication of the instant criminal revision, the

following facts are required to be recorded:

3.    The petitioner being the wife of the opposite party filed an

application under Section 12 of the said Act on 28th August, 2019 for

different reliefs available to her in the said Act including residence order

under Section 19 of the said Act. In the said proceeding, the petitioner

filed an application under Section 23 of the said Act praying for interim

relief. The opposite party entered appearance in the said case and filed

written objection against the petitioner's application under Section 23 of

the said Act. Vide order dated 13th February, 2020, the learned Magistrate

passed an order disposing of the application under Section 23 of the said

Act providing various interim reliefs to the wife/aggrieved person. The

opposite party was directed to provide a suitable accommodation to the

petitioner in the shared household if the petitioner is willing to stay.

4.    The said order was challenged in appeal by the opposite party

before the learned Sessions Judge, South 24 Parganas at Alipore which

was registered as Criminal Appeal No.33 of 2020. The learned Sessions

Judge passed a limited order of stay of the order passed in Misc Case no.

AC 4538 of 2019 so far as it relates to the direction upon the present
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opposite party to provide a suitable accommodation to the petitioner in

the shared household.

5.    The petitioner being aggrieved by the order of stay passed by the

learned Sessions Judge, South 24 Parganas, Alipore has filed the instant

criminal revision.

6.    It is submitted by Mr. Sabyasachi Banerjee, learned Advocate for

the petitioner that marriage of the petitioner with the opposite party was

solemnized on 22nd February, 2019. The petitioner has been staying at

her paternal home since 10th April, 2019 following a matrimonial discord

and being victim of domestic violence by the opposite party and other

matrimonial relations.

7.    The learned Advocate for the petitioner next draws my attention to

the prayer made by the petitioner in her application under Section 12

read with Section 23 of the said Act. In prayer II, the petitioner has prayed

for "Residence order under Section 19 of the Act....". The said prayer

is subdivided by the following prayers:

            (A) Restraining    the       respondents    from     alienating/

dispossessing/encumbering the shared house hold.

(B) An order entitling the aggrieved person for continuing

access to her personal assets.

(C) An order directing the respondents to return to the

possession of the aggrieved person her stridhan or any

other property or valuable security to which she is entitled

to.

(D) An order directing the respondents to secure same level of

alternate accommodation or to pay rent for the same in

favour the aggrieved person.

Mr. Banerjee next draws my attention to Section 19 of the said Act.

The said Section runs thus:-

19. Residence orders.--

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

8. It is submitted by Mr. Banerjee that so far as residence is

concerned, the petitioner prayed for a direction upon the respondent to

secure same level of alternate accommodation for her as enjoyed by her in

the shared household or to pay rent for the same, if the circumstances so

require. The learned Magistrate passed an order directing the opposite

party to provide a suitable accommodation to the aggrieved person in the

shared household if the aggrieved person is willing to stay. It is contended

by Mr. Banerjee that Sub-Section (2) of Section 13 empowers the

Magistrate to pass any direction other than the one which has been

prayed by the petitioner which he may deem reasonably necessary for the

protection and safety of the aggrieved person. However the opposite party

failed to secure possession of the petitioner in her shared household.

Therefore the opposite party is under obligation to secure same level of

alternate accommodation or to pay rent for the same in favour of the

aggrieved person. According to Mr. Banerjee, the learned Sessions Judge

acted illegally and with material irregularity in staying the order passed

by the learned Magistrate.

9. Next branch of argument of Mr. Banerjee is that the statute directs

the opposite party/respondent to "secure same level or alternate

accommodation for the aggrieved person as enjoyed by her in the shared

household or to pay rent for the same".

10. According to Mr. Banerjee the type of alternate accommodation

which can be provided to the wife shall be more or less similar to her

accommodation which she had at her shared household. The wife has

every right not to accept alternative accommodation or rent in lieu of it if

such alternative accommodation arranged by the husband is not up to

the same level where she used to reside in the shared household. There

cannot be any alternative view of the phrase "same level of alternate

accommodation".

11. Coming to the instant case, Mr. Banerjee submits some

photographs of the matrimonial home of the aggrieved person where she

used to reside. It is needless to say that the said building is a palatial

house having beautiful garden, sprawling lawns, portico, big size dwelling

rooms with all modern and latest amenities. He next refers to the

photographs which the opposite p[arty wants to provide as alternate

accommodation to the petitioner. It is further submitted by Mr. Banerjee

that the matrimonial home of the petitioner is situated at Pretoria Street

where as the opposite party wants to provide alternate accommodation to

the petitioner at Rashbehari Avenue. The locality in Pretoria Street and

Rashbehari Avenue should also be taken into consideration in order to

decide as to whether the alternate accommodation suggested by the

opposite party to the petitioner is of same level or not. Mr. Banerjee also

submits alternative proposals for accommodation in and around the

locality where the matrimonial home of the petitioner is situated. He

finally submits that the learned court below may be directed to direct the

opposite party to secure alternate accommodation for the petitioner

accepting any of the proposals made by him on behalf of petitioner.

12. Mr. Sandipan Ganguly, learned Senior Counsel for the petitioner,

on the other hand, submits that the petitioner in her application under

Section 12 of the said Act did not pray for her right of residence in the

shared household. She wanted to pray for a mandatory direction upon the

opposite party to arrange for an alternate accommodation for her. The

learned Magistrate passed an order directing the opposite party to prove a

suitable accommodation to the aggrieved person in the shared household

if the aggrieved person is willing to stay.

13. The opposite party preferred Criminal Appeal No.33 of 2020 and the

learned Sessions Judge granted an interim order of stay so far as it

relates to the direction upon the opposite party to provide a suitable

accommodation to the petitioner in the shared household.

14. According to Mr. Ganguly since there was no prayer made by the

petitioner to secure her stay in the shared household and in the absence

of such prayer the learned Magistrate granted such relief, an interim

order of stay was passed by the learned Sessions Judge in appeal. There

is no illegality in the said order as no relief can be granted without any

prayer being made in consonance to such relief. He also submits that this

Court while exercising revisional jurisdiction cannot decide the question

as to whether the proposal for alternative accommodation given by the

opposite party to the petitioner is acceptable or not.

15. It is further submitted by Mr. Ganguly that the matrimonial home

of the petitioner is the ancestral house of the opposite party. He is not the

absolute owner of the same. The opposite party has stated on affidavit

that he earn Rs.1 lakh per month. If the proposal of Mr. Banerjee is to be

accepted, then the opposite party will have to borrow money to provide

alternative accommodation to his wife.

16. I have duly considered the submission made by the learned

Counsels for the parties. It is not disputed that the learned Magistrate

passed an interim order under Section 19 of the said Act in Case No.AC

4538 of 2019 on 13th February, 2020. The opposite party being aggrieved

preferred an appeal before the learned Sessions Judge which was

registered as Criminal Appeal No.33 of 2020. In the said appeal opposite

party preferred an application for stay of the part of the order dated 13th

February, 2020 passed by the learned Magistrate in Case No.AC 4538 of

2019 directing the opposite party to pay interim monetary relief from the

date of filing of the application under Section 12 of the said Act and to

provide suitable accommodation to the respondent No.2 in the shared

household, if the respondent No.2 is willing to stay. The appeal was

admitted and the second part of the order passed by the learned

Magistrate was stayed. The appellant was directed to file requisites for

issuance of notice upon the respondent.

17. Section 397 of the Code of Criminal Procedure empowers the High

Court or any Sessions Judge to call for and examine the record of any

proceeding before any inferior Criminal Court situate within its or his

local jurisdiction for the purpose of satisfying itself or himself as to the

correctness, legality or propriety of any finding, sentence or order,

recorded or passed, and as to the regularity of any proceedings of such

inferior Court, and may, when calling for such record, direct that the

execution of any sentence or order be suspended...

Sub (2) of Section 397 states that the powers of revision shall

not be exercised in relation to any interlocutory order passed

in any appeal, inquiry, trial or other proceeding.

18. If Section 397(1) is carefully read and interpreted, one would find

two distinct parts, viz, to examine and satisfy as to the correctness,

legality or propriety of any finding, sentence or order, recorded or passed

and secondly, the provision authorizes the revisional court to suspend

execution of any sentence or order till examination of the finding,

sentence and order under revision passed by the inferior court.

19. A question naturally arises as to whether second part of the

revisional court's power regarding temporary suspension of any sentence

or order is in the nature of final order or interlocutory order.

20. Order which is passed on a matter arising from and during the

course of appeal, inquiry, trial or other proceeding before a criminal court

by way of preliminary or procedural step and which does not terminate

the said appeal, inquiry, trial or proceeding by deciding finally the dispute

between the rights of the parties, is an interlocutory order. The decision of

the Hon'ble Supreme Court in Tarapore and Co. vs. Tractors Export

reported in AIR 1970 SC 1168 may be relied on this regard.

21. It is important to note that the expression "interlocutory order" has

not been defined in the Code. In Amar Nath vs. State of Haryana

reported in (1977) 4 SCC 137, it is been laid down that interlocutory

order merely denotes orders of a purely interim or temporary nature

which do not decide or touch the important rights, or the liabilities of the

parties. Any order which substantially affects the, right of the accused, or

decides certain rights of the parties cannot be said to be an interlocutory

order so as to bar a revision against that order.

22. In Madhu Limaye vs. State of Maharashtra reported in AIR 1978

SC 47 it is held by the Supreme Court that "interlocutory order" cannot

be equated as invariably being converse of final order : an order passed

during the course of a proceeding may not be final but, yet it may not be

an interlocutory order, pure and simple. Same kinds of order may fall in

between two which must be taken to be an order of the type falling in the

middle course. The bar of Section 397(2) is not meant to be attracted to

such kinds of orders. An order rejecting the plea of the accused on a

point, which, when accepted, will conclude the particular proceeding, is

an order of this kind not being an interlocutory order within the meaning

of Section 397(2) of the Code of Criminal Procedure.

23. Coming to the provisions of the Protection of Women from Domestic

Violence Act, if an order passed by the Appellate Court under Section 29

of the said Act staying monetary relief granted to the aggrieved person

against the respondent at the time of admission of appeal, the said order

cannot be said to be interlocutory order as it affects the right of the

aggrieved person pending disposal of the appeal.

24. If protection order passed under Section 18 of the said Act passed

by the Magistrate is altogether stayed at the time of admission of appeal

without granting any interim protection to the aggrieved person, such

order is not an interlocutory order.

25. However the aggrieved person prays for a direction against the

opposite party to secure same level of alternate accommodation under

Section 19(1)(f) of the said Act but learned Magistrate passes an order

under Section 17 of the said Act providing right of residence to the

petitioner in the shared household and the learned Sessions Judge in

appeal stays operation of the order till the disposal of the appeal, the

nature of the order is undoubtedly an interlocutory order because it does

not affect the right of the petitioner as she did not pray for right of

residence at shared household.

26. In view of the above discussion I come to an irresistible conclusion

that the instant revision is not maintainable against the order impugned.

27. Last but not the least, when both the learned Counsels in course of

their argument started bargaining as to whether the accommodation

offered by the opposite party is of same level to the accommodation

available in shared household or that the opposite party is under legal

obligation to provide alternate accommodation of same level to the

petitioner, I direct the learned Sessions Judge to dispose of the appeal

taking into account such facts and circumstances. I refrain from making

any comment with regard to the question raised by the parties as this will

be prejudging the appeal on merit.

28. The instant revision is accordingly dismissed on contest, however,

without cost.

(Bibek Chaudhuri, J.)