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Deepak Das vs Smt. Anita Das on 28 July, 2021

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

WPCR No. 220 of 2017

Order Reserved on : 12.07.2021

Order Delivered on : 28.07.2021

Deepak Das, S/o Janthir Das, Aged About 41 Years, R/o Safia,
Tehsil Janjgir, District- Janjgir-Champa, presently posted as
Associate Professor Hidayatullah National Law University,
Abhanpur, Naya Raipur, District- Raipur (C.G.)
—- Petitioner
Versus
Smt. Anita Das, W/o Deepak Das, Aged About 32 Years, R/o
Quarter No. 223, Ward No. 33, Shanti Nagar Grih Nirman Mandal
Colony, Balco Nagar, Korba, Thana- Balco, District Tehsil- Korba
(C.G.)
—- Respondent

For Petitioner : Ms. Juhi Jaiswal, Advocate.
For Respondent : Mr. S.V. Purohit, Advocate.

Hon’ble Shri Justice Narendra Kumar Vyas
CAV Order

1. The petitioner/ husband has filed this writ petition under Article
226 of Constitution of India, challenging the order dated
05.05.2017 (Annexure P/1) passed by learned Sessions
Judge, Korba (C.G.) in Criminal Appeal No. 03/2017 (Smt.
Anita Das Vs. Deepak Das), whereby the appeal preferred by
the respondent/wife has been allowed and restored M.Cr.C.
No. 20/2015 which was dismissed by Judicial Magistrate First
Class, Korba (C.G.) for want of prosecution on 16.12.2016.

2. The brief facts as projected by the petitioner are that the
marriage between the petitioner and the respondent was
solemnized on 07.07.2002 at Balco, Korba according to Hindu
customs and out of their wedlock, one male child was born on
08.06.2003. Till birth of the male child, they were peacefully
and happily residing together. The petitioner is presently
working as an Assistant Professor in Hidayatullah National
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Law University, Raipur. On 19.10.2003 Amrit Das, who is the
elder brother of the respondent came to the house of the
petitioner and informed that the father of the respondent is
sick. Hence, the respondent along with their son namely
Paras Das went away with her elder brother to her parental
home on the pretext of illness of her father. When the
petitioner went to house of the respondent, it was found that
her father was not ill and the same was only a lie told to the
petitioner by the respondent to leave his house. Since then
the respondent has not been residing with the petitioner,
deserted her matrimonial house and is living with her parents.
Despite several attempts and requests made by the petitioner,
the respondent had refused to come back to her matrimonial
house and cohabited with the petitioner, therefore, the
petitioner moved an application before Family Conciliation
Centre for resolution of family dispute and approached the
President of their Community for re-union of their marital life.
Ultimately, the petitioner went to the house of the respondent
along with his father in the year 2011 asking her to come
back. However, despite all the efforts made by the petitioner,
the respondent refused to come home with him and hence,
she had not been living with him till their divorce. The
respondent filed an application under
Section 125 of the
Cr.P.C. seeking maintenance of herself and their son Paras
Das. Since, the petitioner was deserted by his wife, he has
filed an application under
Section 13 of the Hindu Marriage
Act, 1955 before Family Court, Korba on 28.01.2012 seeking
decree of divorce on the ground of cruelty that the respondent
had voluntarily left the house of the petitioner and the
complaint was made premeditatedly after the petitioner
cleared his intention for divorce. Thereafter, the respondent
filed an application under
Section 9 of the Hindu Marriage Act,
1955 for restitution of conjugal rights before Family Court,
Korba, which was dismissed vide order dated 22.08.2015.
The petitioner also filed an application under
Section 25 of
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Guardians and Wards Act, 1980 before Family Court, Korba
and the same was dismissed.

3. After filing of the petition for divorce on 28-1-2012 by the
petitioner, on 22.06.2013, the respondent filed a complaint
under
Section 12 (1) of the Protection of Women from
Domestic Violence Act, 2005 (for short “the Act, 2005”) before
Project Officer, Integrated Child Development Scheme, Korba
contending that the petitioner used to torture and manhandled
her, removed her from his house and he was unwillingly
married to her. She further contended that the petitioner has
already got second marriage and out of that wedlock, he has
two children. Her complaint was registered as Complaint Case
No. 20/2015 by the Judicial Magistrate First Class, Korba, who
dismissed the complaint for want of prosecution vide its order
dated 16.12.2016. The respondent being aggrieved by this
order of dismissal of complaint, has filed an appeal as
provided under
Section 29 of the Act, 2005 before the learned
Sessions Judge, Korba contending that the petitioner was
continuously harassing and torturing her right from the
beginning and he has deserted her. He is working as an
Assistant Professor in Hidayatullah National Law University,
Raipur and still he is not maintaining her though he is having
agricultural land at Village- Sepia, P.S.- Dabhra, District-
Janjgir-Champa. The petitioner created pressure to settle their
dispute, therefore, she prayed that the petitioner may be
directed to give Rs. 90,000/- as monthly maintenance of
herself and their son under
Section 12 (1) of the Act, 2005.

4. The petitioner filed reply denying the aforesaid allegations
made by the respondent. The respondent has filed various
interim applications before the Judicial Magistrate First Class,
Korba who on 16.12.2016 dismissed the same for want of
prosecution. The learned Sessions Judge, Korba considering
the fact that the counsel is not present, therefore, the interim
application should have been decided on merit and the case
should have been fixed for further hearing, but the learned
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Judicial Magistrate taking the hypothetical view dismissed the
case, which is not proper, as such, the order dated
16.12.2016 was set aside and the appeal was allowed. The
petitioner has filed this petition assailing dated 05.05.2017
(Annexure P/1) passed by learned Sessions Judge, Korba
(C.G.) in Criminal Appeal No. 03/2017 (Smt. Anita Das Vs.
Deepak Das)

5. Learned counsel for the petitioner would submit that the entire
proceeding initiated by the respondent has been only to seek
vengeance against the petitioner for divorcing her. He would
further submit that the petitioner has to travel from Korba to
Raipur for every hearing and when he was absent on the date
of hearing, the respondent had deliberately misused the
judicial process to further harass the petitioner. He would also
submit that the respondent has failed to avail the opportunity
of hearing before the court below, hence, it is prayed that this
petition may kindly be allowed.

6. On the other hand, learned counsel for the respondent would
submit that on 16.12.2016 at the time of calling the above
mentioned case, she was busy in her mother’s treatment,
therefore, she could not appear before the court, hence, the
case was dismissed for want of prosecution. It is further
contended that the submission made by learned counsel for
the petitioner is false, baseless and is not acceptable. He
would further submit that the details of amount mentioned in
the counter affidavit has been filed in pursuance of the order
passed by this Court, which is not sufficient amount. The
order passed by learned Sessions Judge is legal and justified.
The court below has rightly passed the order, which does
not warrant any interference by this Court, therefore, it is
prayed that the present petition is liable to be dismissed.

7. I have heard learned counsel for the parties and perused the
documents annexed to the petition. Learned counsel for the
petitioner has filed written submission reiterating grounds
taken by her in the Writ Petition and would submit that
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initiation of criminal proceedings against the petitioner is
nothing but is an abuse of process of law, which is liable to be
quashed by this Court exercising power conferred upon this
under
Article 226 of the Constitution of India . He has placed
reliance on Kapil Agrawal and others Vs. Sanjay Sharma
and others, reported in 2021 SCC online SC 154, Pepsi
Foods Ltd. others Vs. Special Judicial Magistrate
others, reported in 1998(5) SCC749. Inderjit Singh Grewal
Vs. State of Punjab, reported in (2011) 12 SCC 588. This
Court vide order dated 20.07.2017 has stayed the proceeding
pending before the Judicial Magistrate First Class, Korba.

8. So far as legal preposition as submitted by learned counsel for
petitioner is concerned it is not in dispute that if criminal
proceedings are nothing but an abuse of process of law, this
court would certainly interfere and quash the proceedings but
from perusal of the pleading and the material placed on
record, there is neither illegality, irregularity nor any abuse
of process of law found in the order of court below (Annexure
P/1) dated 05.05.2017, which warrants any interference by
this Court exercising power under
Article 226 of the
Constitution of India. From records, it is clear that the case
was pending for orders on various interim applications and
instead of rejecting the same, the learned Judicial Magistrate
First Class has dismissed the entire case, which was nothing
but an absolute illegality committed by Judicial Magistrate
First Class, Korba, the same has been rightly rectified by the
learned Sessions Judge by restoring the complaint. Even
otherwise, it is well settled by Hon’ble the Supreme Court that
the Court should have given helping hand to the litigant by
adopting liberal approach while restoring the case or
condoning the delay because ultimate object of the judicial
system is that the case should be decided on merits instead
of dismissal for want of prosecution on some technicality.
Therefore, order passed by the Sessions Judge is legal and
justified which is not liable to be interfered with by this Court.

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Therfore, I do not find any illegality or irregularity in the order
passed by the Sessions Judge, warranting interference by this
Court in exercise of power under
Article 226 of the
Constitution of India, therefore, this petition is liable to be and
is hereby dismissed.

9. As the matter is pending since 2017, it is directed that the
learned Judicial Magistrate First Class shall decide the case
within an outer limit of one year from the date of appearance
of both the parties after affording an opportunity of hearing to
the parties to adduce evidence, if any. The parties are
directed to appear before the Judicial Magistrate First Class
on 23rd August 2021 and thereafter, the matter will be decided
within a period of one year from the first date of appearance
given before that Court. It is made clear that this Court has
considered the submissions made by the parties for the
purpose of deciding the legality and propriety of impugned
order dated 05.05.2017 only and the same will not adversely
affect the right of petitioner to take any stand to defend or to
protect his interest before the learned trial Court. All the
contentions raised by the parties are left open which may be
decided by learned trial Court without being influenced by any
observation made by this Court .

10. In view of the above, the instant writ petition is dismissed. No
order as to costs.

11. The interim order passed by this Court on 20-07-2017 stands
vacated.

Sd/-

(Narendra Kumar Vyas)
Judge

Arun

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