Calcutta High Court (Appellete Side)
Raja Ram Shaw & Anr vs The State Of West Bengal & Anr on 3 August, 2022
Form J(1) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 2467 of 2022
Raja Ram Shaw & Anr.
Vs.
The State of West Bengal & Anr.
Mr. Pawan Kumar Gupta
Mr. Awadesh Kumar Rai
Ms. Sofia Nesar
Mr. Santanu Sett
...for the petitioner
Item No.155ML
Heard & Judgment on: 03.08.2022
Bibek Chaudhuri, J.
In a proceeding instituted by the opposite party No.2 against
her husband and all other matrimonial relations under Section 12 read
with other relevant provisions of interim relief contained in Protection
of Women from Domestic Violence Act warrant of arrest was issued by
the trial Court vide impugned order dated 18th June, 2022.
The present petitioners are the father-in-law, married sister-in-
law and her husband who have been arraigned as opposite
party/respondents in the said proceeding under PWDV Act.
The learned advocate for the petitioner has filed the certified
copies of the entire order sheets passed in Misc. Case No.749 of 2018
instituted by the opposite party against her husband and present
petitioners. During the pendency of the above stated Misc. Case, the
husband of the private opposite party has already submitted the
affidavit of assets. On the basis of the affidavit of assets interim
prayer made by the opposite party No.2 might be disposed of by the
learned Magistrate. However, he insisted upon personal appearance
of all the opposite parties. This Court fails to understand as to why
such personal appearance is felt necessary by the learned Magistrate.
In Siladitya Basak and Ors versus State of West Bengal
and Anr. reported in 2010(2) Crimes 858 this Court was pleased to
hold that in paragraph 14 and subsequent paragraphs as hereunder:-
"14. As to non-submission of affidavit in Form III , it has to be
said that affidavit has been appended to the application but it may be
that the affidavit did not contain the all information as per Form III. If
the learned Magistrate so desires and permits the petitioner, another
affidavit may be sworn in pursuant to the prayer under Section 23 (2)
of the Act.
15. Undoubtedly, the learned Magistrate has committed
illegality in asking the petitioners to appear in person. Form VII
clearly provides that the learned Magistrate may direct that the
respondents may appear either personally or through a duly
authorized Counsel. Therefore, since the application under Section 12
of the Act is meant for certain reliefs under Sections 18, 19, 20, 21,
22 & 23, it is not necessary that the "respondent" has invariably to
appear in person. Of course, the Magistrate has judicial discretion to
direct appearance of a respondent in person provided such
appearance is found necessary for adjudication of the dispute. But
the matter of the fact is that the Section 12 of the Act does not relate
to any offence punishable under the Indian Penal Code. Therefore,
personal appearance of a respondent is not a must."
In view of such circumstances and considering the ratio of the
decision of a Co-ordinate Bench in Siladitya Basak (supra) I find that
the impugned order dated 18th June, 2022 is illegal, invalid and
inoperative. No warrant of arrest is required to be issued in a
proceeding under Section 12 and other cognate provisions of the
PWDV Act when the opposite party has already filed affidavit of assets
and the trial Court could very well dispose of the application for
interim relief filed by the opposite party No.2 on the basis of domestic
incident report and the affidavit of assets.
For the reasons stated above, the instant revision is allowed.
The impugned order dated 18 th June, 2022 is set aside. Warrant of
arrest issued against the petitioners be recalled.
Since the proceeding under Section 12 of the PWDV Act is
pending for long, the learned trial Judge shall take serious endeavour
to expedite the hearing of the case.
(Bibek Chaudhuri, J.)
