Calcutta High Court (Appellete Side)
Srikant Ray vs The State Of West Bengal And Anr on 1 November, 2022
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IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2923 of 2019
Srikant Ray
Vs.
The State of West Bengal and Anr.
For the Petitioner : Mr. Sanjib Mitra,
Mr. Suryasarathi Basu.
For the State : Mr. Narayan Prasad Agarwal,
Mr. Pratick Bose.
For the O.P. No. 2 : Mr. Prabir Kumar Mitra,
Mr. Pinak Kumar Mitra,
Ms. Ariba Shahab.
Heard on : 20.09.2022
Judgment on : 01.11.2022
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Shampa Dutt (Paul), J.:
The application is against the judgment and order dated 29.08.2019
passed by the learned Additional District and Sessions Judge, 2nd Court,
Serampore, Hooghly allowing Criminal Appeal no. 4 of 2019 and thereby
setting aside order dated 18.07.2018 passed by the Ld. Judicial Magistrate, 3rd
Court, Serampore in Misc. Case No. 103/2014.
The petitioner's case is that the opposite party no. 2 filed an application
under Section 12 of The Protection of Women from Domestic Violence Act, 2005
against the petitioner before the learned Additional Chief Judicial Magistrate,
Serampore, Hooghly being Miscellaneous Case No. 103 of 2014.
The case was subsequently transferred before the learned Judicial
Magistrate, 3rd Court, Serampore, Hooghly and the petitioner filed show cause
in the said proceeding inter alia on the ground that the case is not
maintainable.
The matter was taken up for hearing on 18.07.2018 before the learned
Judicial Magistrate, 3rd Court, Serampore, Hooghly on the issue regarding
maintainability of the case and after hearing the parties the learned Court was
pleased to direct that the instant case is not maintainable and stands
dismissed on the ground that the instant opposite party no. 2 filed the instant
case being a minor and not represented by any of her natural guardian or next
friend.
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The opposite party no. 2/daughter then filed an appeal under Section 29
of Protection of Women from Domestic Violence Act, 2005 against the said
order dated 18.07.2018 before the learned Additional District Judge, First
Court, Serampore, Hooghly being Criminal Appeal No. 4 of 2018.
By a judgment and order dated 29.08.2019, the Additional Sessions
Judge, 2nd Court, Serampore, Hooghly set aside the order dated 18.07.2018
passed in Miscellaneous Case No. 103 of 2014 with a direction for review of the
same by the learned Judicial Magistrate, 3rd Court, Serampore, Hooghly.
The petitioner/father's case herein is that at the time of filing the
application under Section 12 of Protection of Women from Domestic Violence
Act, 2005 the opposite party no. 2 was a minor and she was not represented by
her natural guardian or next friend and therefore the said application under
Section 12 of Protection of Women from Domestic Violence Act, 2005 filed by
the opposite party no. 2 is not maintainable in the eye of law.
The petitioner's further case is that the learned Appellate Court failed to
consider the settled principle of law that a minor cannot take any legal action
without being represented by his/her natural guardian or next friend and
erroneously set aside the order passed by the learned Judicial Magistrate, 3rd
Court, Serampore, Hooghly and therefore the judgment dated 29.08.2019
passed by the learned Additional Sessions Judge, 2nd Court, Serampore,
Hooghly is not at all tenable in the eye of law and liable to be set aside. The
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petitioner has thus prayed for setting aside of the judgment and order under
revision.
Affidavit in opposition and reply thereto has been filed, denying each
others' case.
Some important dates in this case are as under:-
1 Date of Birth of the opposite - 27.08.1999
party/petitioner Ms. Aparajita Ray.
2 Date of filing case before Ld. A.C.J.M., - 02.04.2014
Serampore, being Misc. Case no. 103 of
2014.
3 Date of becoming a Major (O.P. no. - 27.08.2017
2/petitioner Aparajita Roy).
4 Date of final order in Misc. Case no. - 18.07.2018
103/2014, dismissing the case on the
ground that the petitioner Aparajita Roy
was a Minor at the time of filing the
case and was not represented by her
natural guardian/next friend.
Mr. Sandip Mitra learned lawyer for the petitioner has prayed for
setting aside of the order dated 29.08.2019 in Criminal Appeal No. 4/2018
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passed by the Ld. 1st Court of Additional District Judge, Serampore, Hooghly.
On the ground that the order/judgment is not in accordance with law.
Mr. Sandip Mitra has stressed on the point that the order of the Ld.
Magistrate was right as the Misc. Case was filed by a minor and thus not
maintainable right from its initiation and cannot be considered to be proper
and in accordance with law even when the petitioner (in Misc. Case) was a
major at the time of final order.
It is further argued that when an application is void ab initio it cannot be
considered to be in accordance with law on the happening of a subsequent
event (herein the daughter/O.P. no. 2/petitioner becoming a major).
Mr. Prabir Kumar Mitra, learned lawyer for the opposite party no. 2
has argued that the protection of women from Domestic Violence Act, 2005 is a
beneficial and assertive legislation for the welfare of victims of Domestic
Violence.
He has relied upon the following rulings:-
(1) Suryanarayana vs. State of Karnataka (2001) 9 SCC 129.
(2) AIR 2004 SC 23 - Ratansinh Dalsukhbhai Nayak vs. State of
Gujarat.
(3) (1997) 5 SCC 341 - Dattu Ramrao Sakhare and Ors. vs. State of
Maharashtra.
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(4) AIR 1969 Orissa 105 (V56C38) Dhansai Sahu and another vs.
State of Orissa.
All these judgments relate to child witness.
(5) (2016), SCC (Cri) 810 Krishna Bhattacharjee vs. Sarathi
Choudhury and Anr.
(a) This relates to the definition "Aggrieved person" and
"continuing offence" under the Act of 2005.
(b) And also regarding the duty and approach of Court's
before nullifying grievance of aggrieved person on the
ground of maintainability.
(c) Courts should adopt sensitive approach towards the
rights of women under 2005 Act.
It is further argued by him that the learned Sessions Judge, was
sensitive in his approach and rightly held that the legislation being benevolent
and the appellant (daughter) therein having become a Major at the time of
passing of the trial order by the learned Magistrate (18.07.2018), the Misc.
Case was thus maintainable as on 18.07.2018 and the Magistrate erroneously
dismissed the Misc. Case and the learned Sessions Judge, rightly set aside the
said order of dismissal. Accordingly, this criminal revision should be dismissed.
Heard all the parties at length. Considered the materials on record and
the relevant provisions of law. Considered.
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Surprisingly, the mother of the opposite party no. 2 (then a minor) and
wife of the petitioner did not file the case under the Domestic Violence Act,
2005 before the Ld. Magistrate. The minor daughter did but without her
natural guardian or next friend. No logical explanation has come forth from the
learned lawyer for the opposite party no. 2 on this point.
A point, where if the mother had filed the case for herself and her minor
daughter (O.P. no. 2 herein) all this controversy would not have arisen in the
first place.
In Raj Behari Lal and Ors. vs. Dr. Mahabir Prasad and Ors. (AIR
1956 All 310), the Allahabad High Court discussed several judgment on this
point including that of Calcutta High Court. The relevant portion of the
judgment is quoted below:-
"The case of filing an appeal without
guardian or by a guardian other than the one who
was appointed by the Court below, to a certain
extent will be analogous to a suit filed by a minor
without a next friend.
In Order 32, Rule 2 there is a provision which
provides that where a suit is instituted by or on
behalf of a minor without a next friend the
defendant might apply to have the plaint taken off
the file and by Clause (2) of Rule 2 notice of such
application shall be given to such person and the
Court after hearing his objection may make such
order in the matter as it thinks fit and in that event
the Court can later oh appoint a guardian and
according to the decisions the suit will be deemed,
even in those cases, to have been filed on the date
on which it was filed and not on the date on which
the guardian was appointed.
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'Beni Ram Bhutt v. Ram Lal Dhukri', 13 Cal
189 (J) was a case where the plaintiffs described
themselves as adults, and on the objection of the
defendants an issue was raised as to whether the
plaintiffs were minors or not.
The finding of the trial Court was that the
plaintiffs were minors and the suit was dismissed.
But the learned Judges of the High Court
suggested that the procedure should have been to
suspend all proceedings and to allow sufficient
time to enable the minors to have themselves
represented in the suit by a next friend and they
held that:
"even if we were inclined to agree with
the lower Court that all the plaintiffs were
minors at the time when the suit was
instituted, still we should have held that the
lower Court was not justified dismissing the
suit upon, that ground."
Further in that case one of the plaintiffs
had attained majority while the suit was
pending in the trial Court and the learned
Judges held:
"But in this case, taking the finding of
the lower Court to be correct, yet, at the time
when the trial took place, plaintiff I was
admittedly of age, and therefore it would have
been un-necessary to suspend proceedings in
order to allow him to appear by a next friend.
In fact being an adult, he was competent to
proceed with the suit himself."
The above case was really once remanded to
the High Court and on remand no objection was
taken by the respondents on the score of their
minority and their Lordships were of opinion that
that being so the respondents were precluded from
relying upon that objection in the lower Court when
the case was remanded to that Court for trial.
If the filing would be a nullity the question of
suspension of proceedings and appointment of a
new guardian later on and the suit becoming a
proper suit if during the pendency of the trial
the plaintiff attains majority and the question
of precluding the respondents from challenging the
decree on that ground would not have arisen.
'Rattonbai v. Chabildas Lalloobhoy', 13
Bom 7 (K) is another case of this nature where a,
suit was filed by the plaintiff without a next friend.
It was held that-
"As regards the law of the case, there is no
doubt that an infant cannot prosecute an action
either in person or by solicitor, but only through an
adult person known as "the next friend of the
minor." There is no doubt also that if an infant does
sue either in person or by solicitor, the defendant
may, under Section 442, (Order 32, Rule 2) apply
to have the proceedings set aside. The omission 'is
not more than an irregularity. It is not a case of
nullity'." And they further held that-
"When the fact of minority is a 'bona fide'
question of evidence, and the defendant's
allegation is found correct, then the usual course
is to suspend all proceedings and to allow
sufficient time to enable the minor to have
himself properly represented in the suit by a
next friend."
In--'Pupooth v. Vayisravanath Manakkal
Raman', AIR 1923 Mad 553 (O) a Bench off that
Court held that:
"If on an issue raised and tried in the case, the
Court finds that the plaintiff is a minor, it should
not dismiss the suit at once but should allow a
reasonable time for a next friend to come on record
and go on with the suit and it is only if no one
comes forward that it should reject the plaint. But
if, before the Court decided that the plaintiff
was a minor, he had become a major, there is
no necessity thereafter to have a next friend
for him."
The Court further held that the court is the guardian of the minors'
interest and cannot allow their interest to suffer by the action of others.
Here, in the present case though admittedly the petitioner in the Misc.
Case was a minor on the date of filing (02.04.2014), she became a Major
(27.08.2017) on the date of final order (18.07.2018) passed by the Ld.
Magistrate. The petition thus was an irregular one, which was regularized
on the date of final order, when the petitioner was a major. As such the
order of the Magistrate dated 18.07.2018 in Misc. Case no. 103/2014 is clearly
not in accordance with law and was thus rightly set aside by the Ld. Sessions
Judge, also taking into consideration that the relief had been prayed for under
an assertive and beneficial legislation.
In Krishna Bhattacharjee vs. Sarathi Choudhury and Anr. (2016) 1
SCC (Cri) 810.
The Supreme Court held:-
"2005 Act is a beneficial and assertive
legislation for more effective protection of
constitutional rights of women and to ensure
that they do not become victims of any kind of
domestic violence."
The Court further held that the duty and approach of Courts:-
"Before nullifying grievances of aggrieved
person on ground of maintainability, Court
should adopt a sensitive approach towards
the right of women under 2005 Act."
In the case before us, the learned Magistrate clearly failed in his duty
and approach as per the guidelines of the Supreme Court and in spite of the
petitioner/opposite party no. 2 being a major, on the date of final order,
dismissed the Misc. Case 103/2014 on that ground thus causing irreparable
loss and injury to the daughter/petitioner/opposite party no. 2 herein. The
learned Magistrate also failed to keep in mind that it is the duty of the Courts
to protect the constitutional rights of women and to ensure that they do not
become victims of any kind of domestic violence. The petition on the date of
filing was a mere irregularity and on the petitioner becoming a major, the
petition was regularized. And it happened before the final order was passed
by the Magistrate.
Here it is the father, who is the person accused of domestic violence. As
such, the learned 1st Court of Additional District and Sessions Judge,
Serampore rightly allowed the appeal, directing the learned Magistrate to hear
the case afresh. The learned Sessions Judge, also kept in mind that the case
was under a beneficial legislation and the appellant was clearly/admittedly a
major on the date of order.
The judgment under revision is thus in accordance with law.
Accordingly CRR 2923 of 2019 stands dismissed.
The learned Magistrate, 3rd Court, Serampore is directed to consider the
Misc. Case no. 103/2014 afresh in accordance with law and dispose of the case
within three (3) months from the date of communication of this order.
Copy of the judgment be sent to the Ld. Additional District and Sessions
Judge, 2nd Court, Serampore, Hooghly and Ld. Judicial Magistrate, 3rd Court,
Serampore, Hooghly for information and necessary compliance.
Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.)
