Mohidur Islam Choudhury Alias Mohidul Islam Choudhury Vs Muslima Begum and Anr.

Heard Mr. A. Hussain, learned counsel for the petitioner and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent no. 2, State of Assam.

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The instant criminal revision petition under Section 438 read with Section 442 and

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Section 528, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 has been preferred seeking setting aside and quashing of Orders, dated 06.05.2025 and dated 04.06.2025, passed by the Court of learned Judicial Magistrate, First Class, Dhubri [‘the Trial Court’, for short] in the course of proceedings of C.R. [D.V.] Case no. 1014/2021.

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In the Order dated 06.05.2025, the Trial Court had recorded that the petitioner, who is the respondent no. 1 in C.R. [D.V.] Case no. 1014/2021, was absent without steps on that day. The Trial Court taking note of such absence of the respondent no. 1-petitioner, deemed it proper to proceed ex-parte against the respondent no. 1-petitioner. By the Order dated 06.05.2025, the Trial Court posted the case on 04.06.2025 for ex-parte argument. The respondent no. 1-petitioner submitted a petition, Petition no. 511/2025 on 04.06.2025, praying for vacating the ex-parte order passed against him on 06.05.2025. After consideration, the Trial Court by Order dated 04.06.2025, dismissed Petition no. 511/2025.

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Having regard to the issues raised in this criminal revision petition, it is taken up for consideration at the motion stage itself, dispensing with the process of issuing notice to the respondent no. 1 herein, who is the aggrieved person in C.R. [D.V.] Case no. 1014/2021.

¶23

The aggrieved person is the wife of the petitioner and their marriage was solemnised on 15.07.2015. The aggrieved person instituted the proceedings of C.R. [D.V.] Case no. 1014/2021 under the Protection of Women from Domestic Violence Act, 2005 [‘the DV Act’, for short] before the Court of learned Chief Judicial Magistrate, Dhubri seeking a number of reliefs under the DV Act. On receipt of notice from the Trial Court of learned Judicial Magistrate, First Class, Dhubri, the petitioner who had been arraigned as the respondent no. 1, appeared before the Trial Court and started participating in the proceedings. At one point of time in the course of proceedings, the aggrieved person and the respondent no. 1 submitted that disputes between them were settled and a petition, Petition no. 975/2023 to that effect was filed on 08.09.2023. Subsequently, the aggrieved person on 24.07.2024 submitted before the Trial Court that though previously, Petition no. 975/2023 was filed on 08.09.2023 stating that the matter had been settled mutually but, no mutual settlement had taken place and the aggrieved person would continue with the case. In view of such

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submission made by the aggrieved person, the Trial Court by Order dated 24.07.2024 dismissed Petition no. 975/2023 and posted the case for evidence from the side of the aggrieved person on 13.09.2024. The aggrieved person had, thereafter, submitted her evidence on affidavit.

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The next dates, 06.03.2025, 24.04.2025 and 06.05.2025 were for cross-examination of the P.W.1, that is, the aggrieved person. On all these occasions, the respondent no. 1, that is, the petitioner was found absent before the Trial Court without taking any steps. The Trial Court finding such absence on the part of the respondent no. 1-petitioner before it, decided to proceed ex-parte against him on 06.05.2025 and ordered the next date as 04.06.2025.

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On 04.06.2025, the petitioner submitted Petition no. 511/2025 for vacating the exparte order passed against him on 06.05.2025. In the petition, the petitioner had inter-alia stated that he has been working as a Senior Assistant in the Establishment of South Salmara Revenue Circle and the office is situated at southern side of River Brahmaputra. The place is a remote place and there is no good communication to reach the Trial Court at Dhubri from the working place of the petitioner. It was further stated that he appeared on 24.04.2025 by submitting hazira but the same was not reflected in the court records. It was further mentioned that on 06.05.2025, the petitioner was busy discharging his duties in the Panchayat Election and because of his Panchayat Election duties, he failed to appear on 06.05.2025. On receipt of Petition no. 511/2025, the Trial Court examined the case records and reached at a finding that there was no hazira filed on behalf of the petitioner on 24.04.2025. The Trial Court rejected the contention of the petitioner as regards his absence on 06.05.2025 by observing that the respondent’s engaged counsel could have either filed a petition seeking leave or appeared in person on 06.05.2025.

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The subject-matter of the proceedings of C.R. [D.V.] Case no. 1014/2021 is a claim, made by the aggrieved person against the petitioner-respondent no. 1. It is found from the materials on record, as noted above, that the petitioner was absent without taking any steps on 06.03.2025 and 24.04.2025. It was on third occasion of his absence, that is, on 06.05.2025, the Trial Court decided to preceed ex-parte against him.

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Such repeated absence of the petitioner in the proceedings of C.R. [D.V.] Case no. 1014/2021 cannot be appreciated. However, the proceedings involved determination of the rights and obligations of the parties in question. If the application filed by the aggrieved person is to be allowed, the petitioner also has to be given reasonable opportunity to rebut the contentions raised by the aggrieved person. Because of the Order dated 06.05.2025, the petitioner has been deprived of the opportunity of cross-examining the aggrieved person, P.W.1. This Court is of the considered view that atleast one opportunity can be granted to the petitioner for cross-examining the aggrieved person in the interest of justice and for proper and effective adjudication of the issues. At the same time, one cannot be oblivious to the situation that on all these occasions, the aggrieved person had to wait for the final determination of her claim because of repeated failure on the part of the petitioner. Therefore, the aggrieved person is to be commensurately compensated.

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In view of the above, this Court deems it fit and proper, in the interest of justice, to set aside the Order dated 06.05.2025 and the subsequent orders whereby the proceedings of C.R. [D.V.] Case no. 1014/2021 proceeded against the petitioner ex-parte. It is informed that the next date of the case is on 12.08.2025. The petitioner is allowed to appear and take part in the further proceedings of C.R. [D.V.] Case no. 1014/2021 on and from 12.08.2025 onwards subject to deposit of a cost of Rs. 10,000/- on 12.08.2025 before the Trial Court. On deposit of Rs. 10,000/- by the petitioner, the Trial Court shall disburse the said amount to the aggrieved person. It is made clear that there shall not any further adjournment prayer from the end of the petitioner for cross-examination of P.W.1.

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The instant revision petition stands disposed of in the afore-stated terms.

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JUDGE

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Comparing Assistant

Mohidur Islam Choudhury Alias Mohidul Islam Choudhury v. Muslima Begum and Anr.

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Mohidur Islam Choudhury Alias Mohidul Islam Choudhury v. Muslima Begum and Anr.

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