Disposed

Anupama Saha v. The State Of Bihar Through The Director General Of Police and Ors.

Patna HC6 Jan 2014CR. WJC/375/2013

Case brief

AI extract

What is this about?

The Patna High Court disposed of a criminal writ petition seeking mandamus for police execution of a Domestic Violence order allowing residence. The court warned respondents that hindrance could lead to prosecution under Section 31 of the Act and advised the petitioner to occupy the premises pending civil partition.

What did the court decide?

Petition disposed; Court advised petitioner to occupy premises; warned respondents of liability under Section 31 of DV Act for hindrance.

Anupama Saha Vs The State Of Bihar Through The… — Pension and Retirement Benefits | Patna HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.375 of 2013

¶2

====================================================== Anupama Saha Wife Of Rameshwar Saha Resident Of Station Chowk, Ward No. 11, P.S. - Farbisganj, District - Araria .... .... Petitioner/s Versus 1. The State Of Bihar Through The Director General Of Police , Bihar, Patna 2. The District Magistrate, Araria 3. The Superintendent Of Police, Araria 4. The Officer-In-Charge, Farbisganj Police Station , District - Araria 5. Brij Mohan Prasad @ Nunu Babu Son Of Late Girdhari Prasad Resident Of Station Chowk, Ward No. 11, P.S. - Farbisganj, District - Araria 6. Pallav Prasad Son Of Brij Mohan Prasad Resident Of Station Chowk, Ward No. 11, P.S. - Farbisganj, District - Araria .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Siddhartha Prasad, Advocate. For the Respondent/s : Mr. S.C-16. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 10 06-01-2014 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Petitioner had launched a proceeding before the competent court of C.J.M under Domestic Violence Act bearing Case No.01 of 2010 asking for residence in an ancestral house with essential facilities without restriction and the same was decided by the learned Chief Judicial Magistrate, Araria vide order dated 02.05.2011 allowing the same(Annexure-5). 3. The Bhaisur of the petitioner along with his son Pallav Prasad were arrayed as Opposite Party. Order dated

¶3

Patna High Court CR. WJC No.375 of 2013 (10) dt.06-01-2014

¶4

¶5

02.05.2011 was challenged under Cr. Appeal No.38A of 2011 before the learned Sessions Judge, Araria, and the same was decided by Additional Sessions Judge, Fast Track Court No.VI, Araria vide judgment dated 30.11.2011(Annexure-6).

¶6

In the aforesaid background, it has been submitted that the averments made by the State in its counter affidavit that on account of pendency of appeal, the order passed by the learned Chief Judicial Magistrate, Araria was not executable, happens to be out of record. It has further been submitted that even thereafter having been informed (Annexure-7) and (Annexure-8) petitioner could not avail the usufruct of order dated 02.05.2011 on account of apathy of the police personnel. Therefore, it has been submitted that a writ of mandamus be issued directing the police official to have implementation of the order dated 02.05.2011.

¶7

The learned Standing Counsel-16 submitted that the petitioner has failed to approach before the learned Chief Judicial Magistrate, Araria for execution of the order, as such, galloping the legal provision by way of approach this Court under criminal writ jurisdiction should not be entertained . It has also been submitted that when alternative remedy is available, then in that event, the remedy under the writ jurisdiction should not be permitted to be invoked.

¶8

Patna High Court CR. WJC No.375 of 2013 (10) dt.06-01-2014

¶9

¶10

It has been submitted on behalf of respondent nos.5 and 6 that from the averment of Annexure-8, it is evident that till today there happens to be no separation/partition by meets and bounds. It has also been submitted that the portion so occupied since before by the petitioner, on account of her absence, is lying vacant. Petitioner is welcome without any hitch and hindrance on their part and in the aforesaid background, though there is no need even then the learned Chief Judicial Magistrate, Araria may execute its order. It has also been submitted that for having partition through court, a suit has been drawn up wherein the petitioner has appeared and has filed her written statement. Therefore, it has been submitted that present petition has been filed with an ulterior motive only to harass.

¶11

Before coming to other issues, it would suffice to incorporate paragraph-7 of the counter affidavit filed on behalf of respondent nos.5 and 6:-

¶12

“7. That with regard to statements made in paragraph nos.6 and 7, it is respectfully stated and submitted that there is only four rooms in the disputed building. It is further submitted that answering respondents have never tried to obstruct the writ petitioner to live in her own share in the disputed building.”

¶13

That means to say, there happens to be an undertaking on the part of the respondent nos.5 and 6 that no hitch

¶14

Patna High Court CR. WJC No.375 of 2013 (10) dt.06-01-2014

¶15

¶16

and hindrance remains or survives in case the portion of the joint house is occupied by the petitioner which he has occupied since before with all annexures. From Annexure-8 series, it is itself admitted by the petitioner that the residential house happens to be still under jointness. Thus, it is well advised to the respective parties more particularly, the petitioner to occupy the premises in terms of paragraph-7 of the counter affidavit till the partition is effected by a Civil Court. In case, there happens to be hindrance on the part of the Opposite Party Nos.5 and 6, apart from being liable to be prosecuted under Section 31 of the Domestic Violence Act, the petitioner will pray before the learned Chief Judicial Magistrate, Araria to have the order executed and in case so prayed, the learned Chief Judicial Magistrate, Araria will get the order executed within seven days from the date so prayed for.

¶17

With the aforesaid observation, instant petition is disposed of.

¶18

(Aditya Kumar Trivedi, J)

¶19

B.Kr./-

Anupama Saha v. The State Of Bihar Through The Director General Of Police and Ors.

Case brief

What is this about?

What did the court decide?

Anupama Saha v. The State Of Bihar Through The Director General Of Police and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Milan Kumari @ Milan Devi Vs The State Of Bihar and Ors.

Ratish Chandra Jha Vs The State Of Bihar and Ors.

Vijai Rai @ Bijoy Roy Vs State of Bihar

Braj Kishore Upadhyay Vs The State Of Bihar Through The Principal Secretary, Department Of Home, Govt. Of Bihar, Patna and O

Mahaanand Mandal Vs the State of Bihar and Anr.

Kanishk Sinha Vs The State Of Bihar Service Through The Secretary, Home Police Department, Vikash Bhavan Govt. Of