Amit Talukdar, J. - (1.) Gender justice even if it can undo the wrong suffered by the petitioner in her matrimonial home which prompted her to move the court for maintenance under Sec. 125 of the Code of Criminal Procedure (for brevity, the said Code) wherein she was further wronged; but, however, cannot give a healing touch to the agony suffered by her since her jinxed matrimony spread out over twenty two years. Prayer for maintenance before the court of the learned Chief Judicial Magistrate, Barasat having been spurned on account of a lack of territorial jurisdiction and the question of res judicata has only rubbed salt to her injurious state of mind. Since her marriage the petitioner who had expectations of floral garlands of love and affection and the warmth of a conjugal life was greeted with a ring of thornes. Roses having given away to thornes in her jinxed matrimony the petitioner along with her hapless ward sought an oasis in her arid desert of misfortune before the court of the learned Chief Judicial Magistrate, Barasat under Chapter IX of the said Code. What was sought to be an oasis by way of securing some succour and relief to stitch her body and soul in tune and to provide a few yarns of cloths for her and few morsels of cereals turned out to be a teasing mirage. This court in this revisional application is entrusted with the job of placating the petitioner from the said mirage; if not, to her cherished oasis and to repair her distraught matrimony but at lest to soothe her gaping wounds fractured by indifference, neglect and some dead legal technicalities which have stood as a stumbling block before this weeping lady. The hands of this court may not be long enough to wipe out the already dried out tears from her cheek but at least, can undo the wrong suffered by her in the sanctum sanctorum. At the very outset with due respect to His Honour I am unable to persuade myself to the finding arrived at by the learned Chief Judicial Magistrate, Barasat in the impugned order. Certain basics which have gone wrong have to be repaired. In the process I am afraid the entire mechanism has to be restructured. However, is it not the ultimate Goal of Justice which should activate the court of law? With the said Social Mission of Law I endeavour to construe the impugned order.
(2.) Firstly, the ground which weighed in the mind of the learned Chief Judicial Magistrate that an earlier award on 04.4.94 under Sec. 125 of the said Code was dismissed "on the ground that she had no reason to live separately from the husband". As such, "this ground being tried in earlier application, the present claim is barred by res judicata." This finding is wholly untenable. Just because a maintenance proceeding under Sec. 125 of the said Code is not a Petition of Complaint within the definitional clause of Sec. 2 of sub -clause (d) of the said Code which reads as follows : (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but does not include a police report. As such, in order to attract the mischief of the said sub -clause the sine qua non has to be commission of an offence. But a petition under Sec. 125 under Chapter IX of the said Code which speaks of the remedial jurisdiction of the court to provide succour to the hapless wives and destitute women cannot be dubbed as a petition of complaint in the said sense it is only a summary redressal for prevention of vagrancy.
(3.) The concept of 'res judicata' is not altogether an alien concept in the Criminal Justice System. Sec. 403 of the said Code which is the legatee of Sec. 403 of the old Code starts with the opening line in sub -section (1): A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made... The emphasis in the said sub -section is focussed on the word 'tried', the word offence 'and convicted or acquitted of such offence' since neither the proceeding under Chapter IX of the said Code is a trial nor is any concept of acquittal or conviction and as the proceedings do not fall within the definition of offence in sub -clause (n) of Sec. 2 which also reads as follows: (n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Sec. 20 of the Cattle -trespass Act. 1871 (1 of 1871). The concept of 'Res Judicata' cannot apply in a proceeding under Chapter IX of the said Code.;