WWW.LAWFINDERLIVE.

COM
LAW FINDER
Submitted By: Sh.Kamal K.Sharma,Advocate
Photo-print from the online archives of Chawla Publications(P) Ltd.
2013(1) CalLJ 235 : 2014(11) R.C.R.(Criminal) 1106 : 2012(118) AIC 500 : 2012(2) CalCriLR 621 : 2012(4) AICLR 583 :
2013(2) HLR 254 : 2012(3) DMC 741 : 2012(3) Cal. H.C.N. 231 : 2012(3) Cal. L.T. 146

1106 Manish Kumar Bhattacharyya v. Smt. Sanhita Bhattacharyya(Calcutta)

into evidence and marked exhibit without any AIC LR 431.

objection. The witnesses identified the signa- S.R. Batra & anr. v. Smt. Taruna Batra, AIR 2007
tures and currency notes. The expert also iden- SC 1118.
tified the currency notes and mentioned the Umesh Sharma v. State, AIR 2010 (NOC) 515 (Del.).
numbers of the notes categorically in the re- JUDGMENT
port. There was no room of doubt as to the
genuinity of the prosecution case. Prasenjit Mandal, J. - This criminal revision
is directed against the order dated March 14,
12. In view of the discussion above, that the 2011 passed by the learned Judicial Magis-
judgement impugned is not required to be up- trate, 5thCourt, Serampore in C.R. No.673 of
set. 2010 thereby granting an interim order of right
13. The appeal, accordingly, fails. of residence of the petitioner/opposite party
therein in the dwelling house situated at 95/A
14. The judgement impugned is affirmed and Patuapara Lane under P.S. Serampore, Dist.
the learned Trial Court is directed to give effect Hooghly under Section 23 of the Protection of
to the sentence imposed without delay. Women from Domestic Violence Act.
Appeal dismissed. 2. The complainant/opposite party herein insti-
--###-- tuted a proceeding under Section 12 of the Pro-
tection of Women from Domestic Violence
Manish Kumar Bhattacharyya v. Smt. Sanhita Bhat-
tacharyya2014(11) RCR(Criminal) 1106(Calcutta) Act, 2005 before the learned Judicial Magis-
Law Finder Doc Id #408118
2012(118) AIC **500**SETTING DONE BY DEVINDE\HEADNOTE MADE BY PRACHI AND TYPE BY SHEENU\P.R. CORRECTION DONE BY SHEENU\zzzz6
trate, 5th Court, Serampore claiming relief of
CALCUTTA HIGH COURT right of residence along with her husband and
Before :- Prasenjit Mandal, J. child at her matrimonial home, that is, at 95/A
C.R.R. No. 1471 of 2011. D/d. 3.4.2012. Patuapara Lane under P.S. Serampore, Dist.
Hooghly. She moved an application under Sec-
Manish Kumar Bhattacharyya & ors. - tion 23 of the said 2005 Act for interim relief
Petitioner and that prayer was granted by the impugned
Versus order. Being aggrieved, the opposite par-
Smt. Sanhita Bhattacharyya & anr. - ties/petitioners herein have filed this applica-
Respondent tion for quashing the said proceeding as well as
For the Petitioner :- Mr. Ayonava Bhattacharya, Ad- setting aside the order under Section 23 of the
vocate. 2005 Act. Now, the question is whether the im-
For the Respondent :- Mr. Barun Kr. Das, Advo- pugned order should be sustained.
cate.
Protection of Women From Domestic Vio- 3. Upon hearing the learned Counsel for the
lence Act, 2005, Sections 12, 23 and 29 - In- parties and on going through the materials-on-
terim order granting right of residence record, I find that there is no dispute as to the
along with husband and child at the matri- relationship between the parties as mentioned
monial home - Invoking of revisional juris- in the petition. The said complaint case was
diction against from the provisions of Sec- filed by the wife against her father-in-law,
tion 29 of the said Act, it is clear that an ap- mother-in-law and elder brother-in-law
peal lies against an order passed under Sec- (Bhasur) contending, inter alia, that she, her
tion 23 of the said Act - When an alternative husband and the child were ousted from the
efficacious remedy is available under the said dwelling house.
Act, the parties are to resort that recourse to 4. Upon perusal of the materials, it appears that
ventilate their grievance - No provision for there are cases and counter-causes between the
preferring a revision - No Scope for inter- parties. The wife/complainant/opposite party
ference with impugned order - Application herein instituted a case under Section 498A of
not maintainable - Hence, Revision dis- the Indian Penal Code against her in-laws and
missed. [Paras 4 and 8 to 11] the petitioners herein lodged a criminal case
Cases referred :- under Section 323/341/506 of the Indian Penal
Md. Sabir Hussain v. State of West Bengal, 2012 (1) Code against the complainant/opposite party
 LAW FINDER
WWW.LAWFINDERLIVE.COM
Submitted By: Sh.Kamal K.Sharma,Advocate
Photo-print from the online archives of Chawla Publications(P) Ltd.

2014(11) RCR (Criminal) Recent Criminal Reports 1107

herein. The complainant/petitioner/opposite son or the respondent, as the case may be,
party herein and her husband are on Court bail whichever is later."
in connection with that case. Both the cases are 8. Therefore, from the provisions of Section 29
pending. So, such facts clearly indicate that the of the said Act, it is clear that an appeal lies
wife, complainant has been residing at the do- against an order passed under Section 23 of the
mestic home referred to above along with her said Act. When an alternative efficacious rem-
husband and the child. The report submitted by
the Concerned Officer after enquiry reveals edy is available under the Act, the parties are to
that the complainant was subjected to torture resort that recourse to ventilate their grievance
by the respondents (i.e. petitioners herein). Un- accordingly.
der the above circumstances, I find that the 9. Mr. Ayonavba Bhattacharya, appearing for
complainant has shown prima facie case to the petitioners submits that in exercise of juris-
have an order of right of residence in the dwell-
ing house. diction under Article 227 of the Constitution,
this Court is competent to take up when the
5. Mr. Ayonava Bhattacharya appearing for the Lower Court has failed to exercise his jurisdic-
petitioners has submitted that the complaint tion properly. In this regard, since an alterna-
lodged by the wife is not maintainable and the tive efficacious remedy is available to the peti-
provision of the said Act of 2005 will not be ap- tioner and there is no provision for preferring a
plicable against the petitioners herein. In sup- revision at all, I am of the view that the alterna-
port of his contention, he has referred to the de-
cision of S.R. Batra & anr. v. Smt. Taruna Ba- tive efficacious remedy which is available to
tra reported in AIR 2007 SC 1118, and thus, he the petitioner should be resorted to by the peti-
submits that the right of the wife is available tioners for seeking redressal of their grievance.
against her husband and not against father-in- 10. In this respect, I have also considered the
law or other relatives, mother-in-law and oth- decision referred to by Mr. Barun Kr. Das ap-
ers. This decision may be referred at the time of pearing for the opposite party in the case of
trial of the suit and not at this initial stage as in
the present case. Md. Sabir Hussain v. State of West Bengal re-
ported in 2012 (1) AIC LR 431. Therefore, the
6. He has also referred to the decision of present application for quashing the proceed-
Umesh Sharma v. State reported in AIR 2010 ing is not maintainable at all. The complainant
(NOC) 515 (Del.), and thus, he submits that the is at liberty to take steps under Section 23 of the
wife cannot claim right to live in house owned 2005 Act, if the situation demands. So, the con-
by father-in-law against his consent. This mat- tention of the petitioners herein that the pro-
ter relates to a restrained order against the fa- ceeding under Section 23 of the said Act
ther-in-law when the wife is residing in the flat
owned by the father-in-law. should be quashed, cannot be accepted.
11. In that view of the matter, I am of the opin-
7. Mr. Barun Kumar Das, appearing on behalf ion that there is no scope of interference with
of the opposite party has contended that the im-
pugned order has been passed under Section 23 the impugned order. The application is not
of the 2005 Act and this is purely interim in na- maintainable. The application is, therefore,
ture. The Act itself does not provide for revi- dismissed.
sion before this Honble Court, but Section 29 12. Considering the circumstances, there will
of the said 2005 Act lays down a provision for be no order as to costs.
appeal against orders passed under the provi-
sions of the said Act. For convenience, the said 13. Urgent xerox certified copy of this order, if
Section 29 is quoted below:- applied for, be supplied to the learned Advo-
"29. Appeal - There shall lie an appeal to the cate for the parties on their usual undertaking.
Court of Session within thirty days from Revision dismissed.
the date on which the order made by the
Magistrate is served on the aggrieved per- --###--
 LAW FINDER
WWW.LAWFINDERLIVE.COM
Submitted By: Sh.Kamal K.Sharma,Advocate
Photo-print from the online archives of Chawla Publications(P) Ltd.

1108 Sarvesh Arora v. State of M.P.(Madhya Pradesh)(Gwalior Bench)

Sarvesh Arora v. State of M.P.2014(11) RCR(Crimi- Judge, Shivpuri in Criminal Revision

nal) 1108(Madhya Pradesh)(Gwalior Bench) No.76/2011 confirming the order
Law Finder Doc Id #408131
dated11.05.2011 passed in Criminal Case
2012(118) AIC **532**SETTING DONE BY DEVINDE\HEADNOTE MADE BY PRACHI AND TYPE BY SHEENU\P.R. CORRECTION DONE BY SHEENU\zzzz6

MADHYA PRADESH HIGH COURT No.459/09 by learned Judicial Magistrate First

(Gwalior Bench) Class, Shivpuri (Shri Deepak Choudhary) by
Before :- Anil Kumar Sharma, J. which charges for the offence punishable un-
M. Cr. C. No. 2696 of 2012. D/d. 10.7.2012. der Sections 406, 323 and 294 of Indian Penal
Sarvesh Arora - Petitioner Code has been framed against the petitioner.
Versus 2. The respondent no.2 has filed a private com-
State of M.P. and another - Respondent plaint against the petitioner/accused for crimi-
For the Petitioner :- Shri Sanjay Gupta, Advocate, nal breach of trust with regard to vehicle pur-
for the petitioner. chased by complainant/respondent no.2 which
For the Respondent No. 1/State :- Shri R.K. Shri- is financed by the petitioner/accused by selling
vastava, Public Prosecutor.
For the Respondent No. 2/complainant :- Shri D.D. it to another person. It is the defence of the pe-
Bansal, Advocate. titioner/accused that vehicle has been sold by
Criminal Procedure Code, 1973, Sections respondent no.2himself as the sale letter has
244 and 245 - Indian Penal Code, 1860, Sec- been signed by him, therefore, no criminal
tions 406, 323 and 294 - Framing of charges breach of trust or any offence has been made
- Both the Courts below overlooked provi- out against him.
sions of section 245, Criminal Procedure 3. Learned counsel for the petitioner has drawn
Code - Because case was registered on the attention towards the evidence and submitted
basis of private complaint filed by respon- that the sale letter of the vehicle has been
dent No. 2 and after taking evidence before signed by the complainant himself, therefore,
charge under Section 244 of Indian Penal it shall be presumed that vehicle has been sold
Code, Court is bound to pass an order fram- by complainant. Learned trial Court while
ing charge in accordance with provisions of passing order by which charges have been
Section 245 of Criminal Procedure Code framed as deferred the consideration of evi-
and it can frame charges only when evi- dence on merit till the disposal of the case.
dence available on record - Held, J.M. Learned counsel for the petitioner has submit-
bound to consider evidence recorded by ted that dispute between complainant and ac-
him and come to conclusion that if such evi- cused are of civil nature, therefore, no criminal
dence was un rebutted would warrant con- liability arises from the civil act of the peti-
viction of otherwise he had to discharge the tioner while the learned counsel for the respon-
accused - Hence matter of consideration of dent no.2 has cited a judgment of the Hon’ble
evidence could not be deferred till conclu- Apex Court in the matter of State of Punjab v.
sion of trial - Impugned order passed by Pritam Chand and Others , 2009 STPL(LE)
Trial court framing charges against peti- 41367 SC, in which it has been held that for a
tioner quashed - Trial Court is directed to
rehear parties and pass appropriate orders breach of trust with regard to paddy entrusted
for framing of charge in light of provisions to the accused, a criminal case may arise out of
of section 245, Criminal Procedure Code - breach of contract.
Petition allowed. [Paras 4 to 7] 4. On perusal of the orders of the trial Court and
Case referred :- learned revisional Court, it is clear that both the
State of Punjab v. Pritam Chand and Others, 2009
Courts have over looked the provisions of Sec-
STPL (LE) 41367 SC. tion 245 of Criminal Procedure Code because
case has been registered on the basis of a pri-
ORDER vate complaint filed by respondent no. 2 and
Anil Kumar Sharma, J. - This petition has after taking evidence before charge under Sec-
been filed under Section 482 of Criminal Pro- tion 244 of Indian Penal Code, Court is bound
cedure Code against the order dated to pass an order framing charge in accordance
28.02.2012 passed by IInd Additional Sessions with provisions of Section 245 of Criminal