Calcutta High Court (Appellete Side)
Injaul Laskar vs The State Of West Bengal & Anr on 8 July, 2022
Form J(2) IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
C.R.R. 2156 of 2022
Injaul Laskar
Vs.
The State of West Bengal & Anr.
For the petitioner : Mr. Sandipan Ganguly, Sr. Advocate
Mr. L.Vishal Kumar
Mr. Dipanjan Dutt
For the State : Ms. Minoti Gomes
Heard on : 08.07.2022
Judgment On : 08.07.2022.
Bibek Chaudhuri, J.
1. Having heard learned senior counsel appearing on behalf of
the petitioner and on perusal of the entire materials on record, this
court is of the view that the instant revision can be disposed of here and
now taking assistance of the learned Public Prosecutor in-Charge. In the
event this court proposes to pass an order without affecting the interest
of the opposite party no.2/wife.
2. Therefore, Ms. Minoti Gomes, learned Public Prosecutor in-
Charge is requested to assist this court on the behalf of the State of
West Bengal. Appointment of Ms. Gomes be regularised by the Legal
Remembrancer, Government of West Bengal.
3. Let me first record the factual aspect of the matter. Present
status of the opposite party no.2 is the divorced wife of the petitioner. It
appears from the record that the petitioner herself divorced her husband
by executing a 'Khullanama' on 6 th May, 2017. It was agreed by and
between the parties that the petitioner/husband would pay a sum of Rs.
2,00,000/- to the opposite party no.2 towards her future maintenance.
The said money was paid to the opposite party no.2.
4. During the subsistence of marriage the opposite party no.2
filed an application under Section 125 of the Code of Criminal Procedure
and the learned Magistrate by his order dated 12 th September, 2012
passed an order allowing a maintenance to the opposite party no.2 @ of
Rs. 2000/- per month. After the said 'Khullanama' being executed and
after receiving a sum of Rs. 2,00,000/- the opposite party no.2 filed an
application under Section 125(3) of the Code of Criminal Procedure for
execution of arrear maintenance for the period between August, 2017
and July, 2018 @ of Rs. 2,000/- per month, total being Rs. 24,000/-.
5. The said application was registered as Misc. Execution Case
No. 348 of 2018 and is pending before learned Judicial Magistrate, 1 st
Court at Alipore.
6. After getting the notice of the said Misc. Execution Case the
petitioner/husband has filed an application under Section 127 of the
Code of Criminal Procedure raising the question as to whether the
amount for which execution case has been filed by the petitioner will be
adjusted against payment of Rs. 2,00,000/- by the petitioner in favour
of the opposite party no.2 on the date of execution of 'Khullanama'.
7. The grievance of the petitioner is that the said application
under Section 127 of the Code of Criminal Procedure is kept pending by
the learned Magistrate and on the other hand he issued warrant of
arrest in the execution proceeding.
8. It is pointed out by Mr. Sandipan Ganguly, learned senior
counsel for the petitioner that the petitioner moved the trial court with a
request to hear out the application under Section 127 of the Code of
Criminal Procedure before passing any coercive order in Misc. Execution
Case. The said prayer was rejected.
9. Being aggrieved the petitioner moved in revision before the
learned Sessions Judge. In revision the said revision was registered as
Criminal Motion no.522 of 2018 and it was disposed of by the learned
Additional Sessions Judge at Alipore by an order dated 27 th February,
2020.
The reasons assigned by the learned Judge in revision is as
follows:-
"I have gone through the impugned order, bestowed my anxious
consideration upon the available materials on record.
A cursory glance at the order impugned reflects that it does not
suffer from any apparent perversity or illegality rendering it capricious
and warranting interference from this court.
In the result the instant revision fails."
10. I am constrained to note that in a judgment or order reasons are
backbone. It is the duty of the judicial officer to assign the reasons as to
why he has decided to pass certain order. The learned Judge in the
revisional court did not assign reason while rejecting the instant
revision. He also did not consider as to whether the money paid by the
petitioner is liable to be adjusted with the amount of money in execution
case. As the learned revisional court dismissed the said criminal
motion, it prompted the judicial magistrate to pass an order of warrant
of arrest against the petitioner which is under challenge in the instant
revision.
11. Thus, it is apparent how the wrong orders multiply legal
proceedings due to failure on the part of a judicial officer in subscribing
reasons.
12. Since the petitioner by filing an application under Section 127
of the Code of Criminal Procedure has prayed for adjustment of the
amount which was paid to the opposite party at the time of divorce with
the amount for realisation of which execution case has been filed, this
court is of the view that the learned Judicial Magistrate, 1 st Court at
Alipore should first hear out the application under Section 127 of the
Code of Criminal Procedure filed by the petitioner and then ought to
have passed an appropriate order in Misc. Ex. Case No.348 of 2018.
13. Accordingly the instant criminal revision is allowed on contest.
The impugned order dated 31 st May, 2022 is set aside. The warrant of
arrest against the petitioner be recalled. Learned Judicial Magistrate, 1 st
Court at Alipore is requested to hear out and dispose of the application
under Section 127 of the Code of Criminal Procedure first and then
Misc. Ex. Case No. 348 of 2018.
(Bibek Chaudhuri, J.)
