TANDRA SIL SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner has preferred this criminal revision under Sections 401 and 482 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 19th November, 2013 passed by learned Additional District and Sessions Judge, Fast Track Court No. 4, Barasat, North 24 -Parganas in Criminal Revision No. 210 of 2012, which arises out of order dated 25th September, 2012 passed by learned Chief Judicial Magistrate, Barasat, North 24 -Parganas in M. Case No. 522 of 2010 under Section 125 of the Code of Criminal Procedure, by which learned Court below refused to grant interim maintenance to the petitioner -wife, but granted interim maintenance in favour of minor daughter of the petitioner at the rate of Rs. 5,000/ - per month with effect from 30th September, 2010.

(2.) MR . Tapan Dutta Gupta, learned counsel appearing on behalf of the petitioner -wife submits that learned Additional Sessions Judge has acted illegally by modifying the order of learned Magistrate who granted interim maintenance in favour of the petitioner -wife at the rate of Rs. 5,000/ - per month with effect from 30th September, 2010. Mr. Dutta Gupta also submits that learned Additional Sessions Judge cannot take into consideration the income of the petitioner -wife as homeopathic doctor as no evidence in this regard is adduced before learned Magistrate. Mr. Dutta Gupta has relied on the decision of our High Court in the case of "Vinod Kumar Lodha V. Mrs. Reena Lodha (nee Jain)" reported in, (2009) 1 CCrLR (Cal) 473 and also the decision of the Apex Court in the case of "Pyla Mutyalamma Alias Satyavathi V. Pyla Suri Demudu and Another" reported in : (2011) 12 Supreme Court Cases 189 in support of his above contention.

(3.) ON consideration of the decision of the Apex Court reported in : (2011) 12 Supreme Court Cases 189, I find that the proposition of law laid down by the Supreme Court is that the High Court cannot reappreciate the evidence while exercising the power of revisional jurisdiction. It is also laid down by the Supreme Court in paragraph 16 of the said decision that "where finding is a negative one, the High Court would entertain the revision, re -evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both the child and the woman". In the instant case, learned Magistrate passed the order of interim maintenance and the said order of interim maintenance was modified by learned Additional Sessions Judge and as such, there is no scope for appreciation or reappreciation of the evidence, because no evidence is adduced before the Trial Court at the time of granting interim maintenance. Moreover, learned Additional Sessions Judge has recorded negative finding by refusing to grant interim maintenance to the petitioner -wife and as such, it is necessary to consider the materials on record and the submissions made by the learned counsels of both parties in order to come to the conclusion whether the findings recorded by learned Additional Sessions Judge is sustainable in law. The proposition of law laid down by our High Court in paragraph 16 of the decision of "Vinod Kumar Lodha V. Mrs. Reena Lodha (nee Jain)" reported in, (2009) 1 CCrLR (Cal) 473 is as follows: