Calcutta High Court (Appellete Side)
Nilmoni Das @ Nilmani Das vs The State Of West Bengal & Ors on 14 December, 2022
Form J(1) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 4053 of 2022
Nilmoni Das @ Nilmani Das
Vs.
The State of West Bengal & Ors.
Mr. P. K. Bhattacharya
..for the petitioner
Mr. S. G. Mukherjee, Ld. P.P.
Ms. Debjani Sahu
...for the State
Item No. 103
Heard & Judgment on: 14.12.2022
Bibek Chaudhuri, J.
The petitioner being the husband of the opposite party No.3 has
filed the instant revision under Section 482 read with Section 401 of
the Code of Criminal Procedure praying for quashing of the order date
20th May, 2022 passed in Misc. Execution Case No.33 of 2016 pending
before the learned Judicial Magistrate, 3 rd Court at Burdwan as well as
the ex parte order passed in Misc. Case No. 78 of 2013 allowing the
opposite party No.3's prayer for maintenance under Section 125 of
the Code of Criminal Procedure.
Having heard the learned advocate for the petitioner and on
careful perusal of the averment made in the instant revision as well as
the certified copy of the order, I find that the instant revision can be
disposed of with the assistance of the learned P.P.-in-charge.
Therefore, Ms. Debjani Sahu, learned P.P.-in-charge is requested to
assist this Court on behalf of the State. The learned advocate for the
petitioner is requested to serve a copy of the application to the
learned P.P.-in-charge.
It is not in dispute that the opposite party No.3/wife filed an
application under Section 125 of the Code of Criminal Procedure
praying for maintenance allowance against her husband, the
petitioner herein. The said application was registered as Misc. Case
No.78 of 2013. The aforesaid Misc. case was disposed of by the
learned Judicial Magistrate, 3rd Court at Burdwan ex parte.
Subsequently the petitioner filed Misc. Execution Case No.33 of 2016
praying for realization of arrear maintenance by way of execution. As
the petitioner failed to appear in the execution case and comply with
the order of payment of maintenance allowance in favour of the
opposite party No.3. The learned Magistrate issued warrant of arrest
on 20th May, 2022 against the petitioner.
By filing the instant revision the petitioner has prayed for
setting aside of the order dated 20 th May, 2022 on the ground that he
is an agricultural labourer having no financial means to pay the
maintenance allowance to his wife. In the instant revision the
petitioner has also prayed for setting aside of the ex parte order of
maintenance passed by the learned Judicial Magistrate, 3 rd Court at
Burdwan in Misc. Case No.78 of 2013.
I have heard the learned advocate for the petitioner. It is
ascertained that the petitioner has not filed any application before the
Magistrate praying for setting aside of the ex parte order passed in
favour of the opposite party No.3. The learned Magistrate issued
warrant of arrest in the execution case for non-appearance of the
petitioner and non-compliance of the order of maintenance. The said
order also cannot be set aside in the instant revision. The petitioner
cannot pray for recalling of the order dated 20 th May, 2022 passed in
Misc. Execution Case No.33 of 2016 passed by the learned Magistrate
without complying with the order passed in the execution case by the
learned Magistrate.
In view of the above discussion, I do not find any merit in the
instant revision. Accordingly, the instant revision is dismissed.
However, this order will not debar the petitioner to file any
application for recalling the ex parte order of maintenance in the
Court below.
Urgent photostat certified copy of this order, if applied for, be
given to the learned advocates for the parties on usual undertakings.
(Bibek Chaudhuri, J.)
