Revision vs Sri Subal Das
2021 Latest Caselaw 1163 Tri

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                               HIGH COURT OF TRIPURA
                                     AGARTALA

                               Crl. Rev. P. No. 38 of 2020

   Smt. Mousumi Saha (Das),
   Wife of Sri Subal Das, Daughter of Sri Shakti Ranjan Saha, Of
   Khudirampally, Amarpur, P.S. Birganj, Dist.-Gomati, Tripura

                                                        -----Revision Petitioner(s)
                                        Versus


1. Sri Subal Das,
   Son of Lt. Jahar Lal Das, Of Sachindra Nagar Colony, Jirania, P.S-
   Jirania, Dist. West Tripura
   Presently posted at Chakmaghat under C/O. Commandant 12th
   Battalion TSR, Chakmaghat, Teliamura, Khowai, Tripura.
                                                               -----Respondent(s)

2. The State of Tripura

-----Proforma Respondent(s)

For Petitioner(s) : Mr. Dhiman Gope, Adv.

Ms. P. Chakraborty, Adv.

   For Respondent(s)                    :    Mr. Raju Datta, Adv.
                                             Mr. S. Debnath, Addl. P.P.

   Date of Hearing                      :    1st October, 2021.
   Date of Pronouncement                :    26th November, 2021.

   Whether fit for reporting            :    NO


                                     B_E_F_O_R_E_
              HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                  JUDGMENT & ORDER

This criminal revision petition is directed against the

judgment dated 27.01.2020 passed in case No. Criminal Appeal No. 21

of 2019 by the Sessions Judge, Gomati Judicial District, Udaipur setting

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aside the impugned order dated 13.05.2019 passed by the Judicial

Magistrate 1st Class, Amarpur, Gomati in case No. CR (DVA) 01 of 2018

whereby the learned Judicial Magistrate rejected the petition of the

respondent husband who challenged the maintainability of the

proceedings under the Protection of Women from Domestic Violence

Act, 2005 pending before the Magistrate.

[2] Factual background of the case is as under:

The undisputed facts are that petitioner is the wife of the

respondent who were married on 18.07.2011 according to Hindu rites

and customs. After marriage, they also obtained a marriage certificate

from the marriage recording officer, Sadar, West Tripura and on

03.08.2011. A wedding reception was organized at the parental house

of the petitioner at Birganj, Amarpur. During marriage, petitioner‟s

father gave valuables including cash sum of Rs.70,000/-. After

marriage, petitioner accompanied her husband to his place where they

lived together as husband and wife. After few days, her respondent

husband started committing torture on her for dowry. Her in-laws also

joined her husband in committing torture on her. At that time, she was

carrying six months‟ pregnancy. On 19.11.2013, she prosecuted her

husband and in-laws under section 498A IPC. The matter was thereafter

settled between them. On 11.02.2014, a female child was born to the

petitioner who was later named Chandni Das. For nursing and postnatal

care of the new born baby, she lived with her parents for few months.

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On 04.06.2014, she returned to her matrimonial home. On 27.09.2014,

she was brutally tortured by her husband and in-laws at her

matrimonial home. As a result, petitioner again left her matrimonial

home on 28.09.2014 along with her new born daughter. Thereafter, she

filed a petition under section 125 Cr.P.C claiming maintenance in which

she was given monthly maintenance of a sum of Rs.5,000/-.

Subsequent thereto, she filed a petition before the Judicial Magistrate

1st Class, Amarpur under section 12 of the Protection of Women from

Domestic Violence Act („the DV Act‟ hereinafter) claiming various

relieves available under the said act. Her petition would demonstrate

that she claimed the following relieves before the learned Judicial

Magistrate First Class:

"(i) To pass a protection order under section 18 of the

Protection of Women from Domestic Violence Act, 2005.

(ii) To pass an order under section 19(3) of the Act directing

the respondent to execute a bond for preventing the

commission of domestic violence.

(iii) To pass an order under section 19(5) of the Act directing

the Officer-in-Charge of Birganj P.S to give protection to

the aggrieved petitioner and also assist the aggrieved

petitioner for implementation of protection order.

(iv) To pass an order under section 19(8) directing the

respondent to return all the articles given by the parents

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and relatives of the aggrieved petitioner including her

stridhan as described in the schedule of the petition.

(v) To pass an order under section 19(f) directing the

respondent to pay @ Rs.2,000/- per month to the

aggrieved petitioner to secure same level of alternative

accommodation in a rented house at Amarpur, Khudiram

Pally, Birganj P/S.

(vi) To pass an order under section 20(1)(b) directing the

respondent to pay Rs.1,000/- per month to the aggrieved

petitioner as medical expenses of her minor daughter."

[3] Her petition was registered as case No. CR(DVA) 01 of

2018 and the respondent was summoned to appear and file his

response.

[4] Respondent husband submitted his written objection

asserting that his mother committed suicide at the instigation of his

petitioner wife. The respondent stated that after his mother finished her

life by jumping under a train, Jirania PS case No. 47 of 2015 was

registered under section 306 IPC and after investigation, charge sheet

was also filed under section 306 read with section 109 IPC against his

petitioner wife and his relatives and the trial of the case is pending. It

was also stated by the respondent husband of the petitioner wife that

his petitioner wife made his life miserable by lodging multiple cases

against him on frivolous grounds. The present petition, according to the

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respondent was filed by the petitioner with a mala fide intention of

saving herself from the charge of section 306 IPC. The respondent

husband also contended in his written objection that his wife had

withdrawn herself from his company long back which was also

established in T.S.(RCR) 31 of 2015 which was filed by him against his

wife for restitution of conjugal rights. Despite direction of the court to

resume conjugal life with him, petitioner did not pay any heed to the

said judicial order. The husband further contended that she previously

filed another petition on same set of allegations against him which was

registered as CR (DVA) 05 of 2014 and the matter was disposed of on

17.05.2014. It was, therefore, stated by the respondent husband that

there could be no second trial with regard to the same allegations made

by his wife. Since his wife did not resume conjugal life with him, he filed

a suit for divorce against her on the ground of cruelty and desertion

which was registered as T.S. (Divorce) 13 of 2018 and in that case

divorce was granted by dissolving their marriage on the ground of

cruelty and desertion by the District Judge, Gomati Judicial District by

his judgment and order dated 15.11.2019 in T.S. (Divorce) 13 of 2018.

Finally, the respondent husband contended that the proceedings under

DV Act was not maintainable against him because his petitioner wife

suppressed all these material facts. Since, she brought similar

allegations against him which were once tried in case No. CR (DVA) 05

of 2014, there could not be any second trial with regard to the same set

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of allegations. The respondent, therefore, challenged the maintainability

of the proceedings.

[5] The trial court by the impugned order dated 13.05.2019

has held that the contentions raised by the respondent husband in his

written objection cannot be decided without taking evidence. Therefore,

the learned trial court discarded the objection of the respondent

husband against the maintainability of the case and listed the matter for

evidence viewing as under:

"..................................It is an admitted fact that in this case no separate petition has been filed from the side of respondent challenging the maintainability of this case. The respondent in his written objection raised the question of maintainability of this case on the grounds of non filing of this petition in the prescribed form, secondly, non-availability of domestic violence and thirdly, suppression of material facts. The learned counsel for the respondent mainly emphasized on the first point that, since this petition has not been filed in the prescribed proforma therefore it is not maintainable in the eyes of law. I this regard, I could not agree with the argument advanced by learned counsel Mr. Roy for the respondent for the reason that section 12(3) of Protection of Women from Domestic Violence Act, 2005 lays down the every application under sub-section (1) of section 12 of the said act shall be in such form and contain such particulars as may be prescribed or as nearly as possible. The use of the term „as nearly as possible‟ implies that it is substances of the application that matters and not the form. The Protection of Women from Domestic Violence Act, 2005 is a beneficial legislation made for securing easy and speedy justice to the person in need. Therefore, in a case under this law, substance would matter more than the procedure. Hence, I do not find any justification to reject the petition on this ground.

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The other grounds raised from the side of respondent are required to be looked into on merit. The proceeding under section 12 of the Protection of Women from Domestic Violence Act, 2005 is quasi-civil in nature. Therefore, the code of Civil procedure may not apply directly but the principles under it certainly apply. Hence, only on the question of law, the petition of this nature can be disposed of at this stage of proceeding without taking evidence.

Since the other grounds like non-availability of domestic violence and suppression of material facts are raised by the learned counsel for the respondent relates to facts, it cannot be decided without taking proper evidence. The respondent has raised those points in his written objection which relates to the facts and no law. Hence, those facts are required to be proved by the respondent by leading evidence. At this stage, there is no scope to decide the fate of the instant petition on those grounds as raised in the written objection. Therefore, the prayer of the respondent stands rejected."

[6] Aggrieved husband challenged the order of the trial court

in Criminal Appeal No. 21 of 2019 in the court of the learned Sessions

Judge, Gomati Judicial District, Udaipur. The learned Sessions Judge

considered the submissions made at the bar and he was of the view

that the respondent wife filed CR (DVA) 05 of 2014 on the same

allegations relating to the same period of time which was tried and

disposed of on 17.05.2014. Therefore, a second trial was barred. The

learned Sessions Judge recorded the following findings while allowing

the appeal and dismissing the respondent wife‟s CR (DVA) 01 of 2018:

"9. Though it is a beneficial legislation for the protection of women as has been observed by the trial court, but since the Act itself postulates the filing of the application in prescribed proforma and further that the Magistrate has to consider the domestic incident report filed by the

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protection officer, I am of the view that non-compliance of the same is a legal infirmity which cannot be over-looked. Accordingly I am of the view that the trial court was wrong in holding that the case is maintainable despite non-fling of the petition under section 12 in prescribed proforma and no-filing of domestic incident report.

10. Further, this DV case was filed before the trial court on 20.01.2018 alleging that the marriage between the petitioner and respondent was held on 18.07.2011 on which they eloped out of their love affairs and got married on the same day as per Hindu rites and custom at Surya Para, AD Nagar, Agartala and subsequently on 03.08.2011 a social marriage function was performed in support of their marriage which was attended by parents and relatives of both sides and various articles as narrated in the petition were given by the parents of the petitioner. But after a few days of marriage the respondent-husband and his relatives started creating pressure upon the petitioner for bringing money from her father and they started physical and mental torture upon her. On 17.10.2013 respondent and his relatives assaulted her and drover her out from the matrimonial house and she took shelter in the house of her parents. On 19.11.2013 she filed a complaint case in the court of SDJM, Amarpur against the respondent-appellant vide No. PRC 247/2013 under section 498A/506/34 of IPC. The case was subsequently compromised and she resumed matrimonial life in the house of the respondent-appellant. On 11.02.2014 her daughter was born and on 04.06.2014 she came to the matrimonial house along with the child but again she was tortured mentally and physically for non-fulfillment of the demand of money and on 27.09.2014 she was tortured and on 28.09.2014 she left the matrimonial house for the last time.

11. But from the record of the case it appears that before filing this DV case on 20.01.2018, the petitioner, earlier filed another DV Case No. CR (DVA) 05 of 2014 on the same allegation for the same span of time. The said DV case was disposed of on 17.05.2014 on compromise in the trial court suggesting thereby that, whatsoever happened, stood condoned by her as on 17.05.2014 and prior thereto. Situated thus, I find force in the submission of Ld. Counsel for the appellant that the respondent-wife

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filed the instant case by suppressing the fact of the earlier case No. CR(DVA) 05 of 2014 which is against the principle of Criminal Jurisprudence in the sense that a person cannot be tried twice for the same cause of action. Therefore, the instant case filed by the petitioner is not maintainable. The learned trial erred by holding it maintainable.

12. In the light of the above discussion and the non-filing of the petition in prescribed proforma and there being no domestic incident report filed by the Protection Officer as required under section 12(1) Proviso of the Act and suppression of the fact of filing of an earlier DV case on the same cause of action by the petitioner, I am of the view that the case of the petitioner is not maintainable and the Ld. Trial court fell into error by holding it as maintainable.

ORDER

13. In the result, the appeal is allowed.

The order dated 13.05.2019 passed by the Ld. Judicial Magistrate First Class, Amarpur, Gomati in case No. CR(DV) 01 of 2018 is hereby set aside."

[7] Heard Mr. Dhiman Gope, counsel appearing for the

petitioner wife. Also heard Mr. Raju Datta, counsel appearing for the

respondent husband.

[8] It is contended by the counsel of the petitioner that there

is no bar in filing a second application because domestic violence is a

continuing offence. Petitioner‟s counsel contends that without a full

hearing on merit, the contentions raised by the husband in his written

objection cannot be decided. Counsel, therefore, urges the court to set

aside the impugned order passed by the Sessions Judge in appeal with

a direction to the trial court to hear the matter on merit.

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[9] Counsel appearing for the respondent husband

vehemently opposes the contention of the counsel of the petitioner. It is

submitted by the counsel of the respondent husband that the learned

appellate court dealt with the matter in detail and by a detailed and

elaborate judgment, the learned appellate court decided the matter on

merit. Therefore, there is no reason to interfere with the judgment of

the appellate court.

[10] Section 12 of the Protection of Women from Domestic

Violence Act, 2005 provides that the aggrieved person who wants to

claim a relief available under the act has to present the application

before the competent Magistrate and before passing any order on such

application the Magistrate shall take into consideration any domestic

incident report received by him from the protection officer or the service

provider. As to the form of application, sub section (3) of section 12

provides that the application under section 12(1) shall be in such form

and contain such particulars as may be prescribed. The Protection of

Women from Domestic Violence Rules, 2006 has prescribed such form

in Form-II and the said rules under rule 6(1) provides that every

application of the aggrieved person under section 12 shall be in Form-II

or as nearly as possible which implies that case of an aggrieved person

cannot be discarded only on the ground that application under section

12 of the Act is not filed in Form-II, if the aggrieved person provides the

required information.

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[11] Application filed by the aggrieved person (petitioner)

under section 12 of the act would demonstrate that her application

contains the details of previous litigations and almost all other

information which are required to be furnished as per the prescribed

form. Therefore, she can be said to have substantially complied with

section 12(3) of the Act and sub rule (1) of rule 6 of the said rules

because her application is near to the application prescribed under the

rules. But the appellate court was correct in holding that the earlier case

i.e. case No. CR (DVA) 05 of 2014 instituted by the wife for same cause

of action was finally decided on 17.05.2014 and therefore, the

petitioner was debarred from instituting a second case under the act

until new cause of action arose. Moreover, it was also observed by the

learned Sessions Judge in the appeal that immediately after filing of CR

(DVA) 05 of 2014 in the court of SDJM, Amarpur, the streedhans of the

petitioner were returned to her. Viewing that a case cannot be tried

twice for the same cause of action, the appellate court interfered with

the impugned order dated 13.05.2019 passed by the learned Judicial

Magistrate 1st Class, Amarpur and set aside his decision to continue with

the proceedings of CR (DVA) 01 of 2018. By this time, the marriage

between the parties have also been dissolved by a decree of divorce

granted on 15.11.2019 by the District Judge, Gomati, Udaipur.

[12] For the reasons stated above, I do not find any ground at

all to interfere with the impugned judgment dated 27.01.2020 of the

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Sessions Judge, Gomati Judicial District, Udaipur passed in Criminal

Appeal No. 21 of 2019 and accordingly the criminal revision petition

against the said order stands dismissed.

[13] In terms of the above, the case is disposed of.

Send down the LC record. Pending application(s), if any,

shall also stand disposed of.

JUDGE

Rudradeep

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