SUKANYA DAS Vs. ARINDAM DAS AND ORS.

JUDGEMENT

(1.) Petitioner Sukanya Das has filed this revisional application against her husband Arindam Das, mother in law Arati Das and the State of West Bengal as respondents/opposite parties mentioning the provisions under Ss. 482/402 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India. Petitioner has challenged the judgment and order, dated 2nd September, 2014 dismissing petitioner's appeal being No. 13 of 2014, passed by learned Additional District and Sessions Judge, 6th Court at Barasat. In that appeal petitioner as appellant challenged the order dated 25th March, 2014 passed by learned Judicial Magistrate (1st Court) at Bidhannagar, District North 24 Parganas in C. Case No. 130 of 2013 rejecting petitions filed by petitioner for taking cognizance under Sec. 31 of the Protection of Women from Domestic Violence Act, 2005 against the respondent No. 1 and for getting exclusive custody of the minor son of petitioner and respondent No. 1 and for a direction upon respondent No. 1 to give an undertaking that the petitioner would be the sole person to contact with the school authority of the child.

(2.) On perusal of the revisional application with its annexures it appears that admittedly the petitioner is the legally married wife of the respondent No. 1 and the couple has a minor school going son. Due to conjugal dispute between the husband and wife, the petitioner filed C. Case No. 130 of 2013 against her husband. In that case on petitioner's prayer interim order for monetary relief and alternative residential accommodation for the petitioner and her child was passed against the respondent No. 1. Said order has not been challenged before higher forum. Respondent No. 1, in compliance with the order of the learned Magistrate under the Protection of Women from Domestic Violence Act, arranged alternative residential accommodation for petitioner and her child. But petitioner did not go to that accommodation from the matrimonial house of petitioner alleging that the accommodation is inadequate and not in conformity with the interim order passed by learned Magistrate. Further allegation of the petitioner is that the respondent No. 1 went to the school of their son and tried to take away the child to any unknown destination. Petitioner filed petition before learned Magistrate for taking cognizance under Sec. 31 of the Protection of Women from Domestic Violence Act, 2005 for violation of the interim order passed by learned Magistrate on the grounds that the respondent No. 1 arranged the alleged alternative residential accommodation for petitioner and her child which is not befitting for them according to their status and present available facilities in petitioner's matrimonial home and for a direction upon respondent No. 1 to give an undertaking that the petitioner would be the sole person to contact with the school authority of their child. Petitioner also alleged that violating the interim order the husband of the petitioner assaulted her kicking on her left thigh with his right leg on 27.01.2014 and 30.01.2014.

(3.) At the time of hearing learned counsel for the petitioner advanced his arguments that neither the learned Judicial Magistrate nor the learned Additional Sessions Judge considered the petitioner's allegation of assault on her by her husband in violation of the interim order passed by learned Judicial Magistrate on 09.10.2013. Drawing my attention to the copy of order dated 09.10.2013 learned counsel submitted that there was order against the husband opposite party No. 1 not to inflict any sort of domestic violence upon the petitioner as long as she stays at her matrimonial home but despite specific allegation of assault upon the petitioner by her husband neither the learned Judicial Magistrate nor the learned Additional Sessions Judge discussed that matter in their orders. Learned counsel has cited a decision of the Hon'ble Apex Court in the case of Achutananda Baidya v/s. Prafullya Kumar Gain and Ors. reported in : JT 1997 (5) SC 75. He has advanced his arguments that under Article 227 of the Constitution of India power of superintendence of High Court, includes power of judicial review in addition to administrative superintendence in order to ensure the proper functioning of subordinate courts and High Court can interfere with the finding of fact where it was arrived at without evidence. Learned counsel for the opposite party No. 1 advanced her arguments that learned Judicial Magistrate and learned Additional Sessions Judge considered meticulously the real matters in dispute between the parties. Relating to allegation of assault on the petitioner by her husband learned counsel for the opposite party No. 1 urged that although said matter has not been specifically discussed but it was considered by both the learned Courts below as appears from the totality of discussions made in their judgments. I have gone through the annexures to the application of petitioner wherefrom it appears that the petitioner made allegation of assault on her by her husband kicking on left thigh by right leg of her husband on 27.01.2014 and on 30.01.2014 and on both the occasions she went to doctor who found no external injury and tenderness was complained by petitioner. On both the occasions the petitioner ledged information before Officer -in -Charge of Bidhannagar East Police Station but there is no report from police in support of her complaints. In the impugned judgment passed by learned Additional Sessions Judge and in the order of learned Judicial Magistrate strained relationship of the husband and wife has been vividly discussed. From the annexures of the instant application prima facie it appears that due to shifting of articles of the petitioner by her husband to the newly arranged accommodation for the petitioner and her child the petitioner lodged FIR alleging theft etc. against her husband. Having gone through the cited judgment of the Hon'ble Apex Court, I like to interfere with the finding of fact. It only appears in the judgment and orders of the learned Courts below that although the learned Courts below sincerely considered the dispute of the couple and welfare of their child but omitted to discuss about petitioner's allegation of repeated kicking on her left thigh by right leg of her husband on 27.01.2014 and 31.01.2014. However, the materials shown referring to the annexures of the application do not appear to me as very much convincing for taking cognizance of the allegation of assault or domestic violence for want of prima facie supporting material to establish the case of wilful violation of interim protection order passed by learned Magistrate. According to the facts, circumstances and the findings on the rival contention in the Courts below I do not find any error in the concurrent finding of fact although I have already mentioned about omission of the learned Courts below to discuss the allegation of assault on petitioner.