- (1.) THIS revision arose out of the order dated 21.4.2012 passed by the learned Additional Sessions Judge, Jangipur, Murshidabad in criminal revision no. 08 of 2011 arising out of the order dated 12.10.2010 passed by the learned Additional Chief Judicial Magistrate, 2nd Court, Jangipur, Murshidabad in M.R. Case no. 21 of 1999 under Section 125 of the Code of Criminal Procedure, 1973.
(2.) THE background of the revision in a nutshell is that the petitioner one Marina Khatun filed a petition under Section 125 of the Code of Criminal Procedure in the learned court below stating inter alia that the O.P. being a neighbor of the petitioner was employed in Peerless Company and they came closer to each other and a relationship was built up. On 27.2.97, the O.P. entering in the room of the petitioner, when she was changing her clothes, forcibly raped her. She started crying. THE O.P. consoled her by stating that he would marry her. Taking advantage of the assurance the O.P. had physical intercourse with the petitioner day-after-day like husband and wife. Lastly, on 8.1.98, one male child was born. THE petitioner requested the O.P. several times to marry her but the O.P. denied. So, the petitioner filed a case under Section 376/493 IPC against the O.P. which is pending. THE petitioner has no source of income to maintain the child born out of the physical relationship between the petitioner and the O.P. THE O.P. is a rich man and has properties of 30/35 bighas and retail business of rice. He is employed in Peerless Company and earns Rs. 1 lakh per year. Hence, the petitioner prays for maintenance for her child. The O.P. filed written objection denying all material allegations as well as the physical relationship between the petitioner and the O.P. He also denied the paternity of the child and contended that the petitioner was working under one Nure Alam Mirza with whom a physical relationship was built up with her. Both went to Mumbai in the year 1997 and the child was born out of the illicit relationship with Nure Alam Mirza. Later, the petitioner and the said Nure Alam Mirza got married and their relation in respect of the physical relation with the O.P. is false. The child is not fathered by the O.P. So, he prayed for dismissal of the case. On hearing of both the sides, learned court below passed the impugned order on 12.10.2010 allowing the same and directing the O.P. to maintain the petitioner for her illegitimate child @ Rs. 500/- p.m. since the date of application on 2.2.1999. It was contended by the learned counsel for the petitioner that the learned court below erred in not considering the fact that the petitioner became pregnant due to physical relationship with the O.P. and ultimately, she gave birth to a male child. Further, it was contended that the learned Judge erred in not considering that the paternity of the child was proved by the report of the DNA test of CFSL, Calcutta by which it was established through a documentary evidence adduced at the time of examination of the witnesses in proceedings under Section 125 of the Code of Criminal Procedure that the O.P. no. 2 is the biological father of the child. On the other hand, the learned counsel for the O.P. submitted that the DNA test report should not at all be looked into because that report was collected during the period of investigation by the Police and such report was reproduced in the charge-sheet and the learned Magistrate illegally relied on that report. The expert was not examined in the court below. It was further contended that only the document is proved and such document cannot be taken into consideration and the petitioner is entitled to get the protection of rule of law. On the other hand, the learned counsel for the petitioner contended that under Section 293 of the Code of Criminal Procedure, DNA test report should be accepted by the learned court below. But he did not accept it. Further, it was contended by him that nothing was paid to her for the child. Now, the point for consideration is if the impugned order calls for any interference or not. The crux of the dispute hinges around only one question the paternity of the child. Admittedly, the petitioner and the O.P. were not married. The maintenance case was for giving maintenance to the so-called illegitimate child. In that event, whether the child is fathered by the O.P. or not is the prime consideration. The petitioner/wife banked upon the DNA test conducted at the behest of the Police in respect of the child and the O.P. According to the petitioner, the Police collected the CFSL Report to the effect that the child was fathered biologically by the O.P. The learned Magistrate concerned while disposing the petitioner under Section 125 of the Code of Criminal Procedure relied upon the report. It further appears that in the separate proceedings under Section 376/493 IPC in G.R. Case no. 496/98 that report is stated to have been mentioned by the Police in the charge-sheet. Curiously enough, that report has not been annexed with the present case. Further, the G.R. Case no. is reported to be pending and it has not yet been established there that the child was fathered by the O.P. Above all, in the case under Section 125 of the Code of Criminal Procedure, the petitioner did not pray for examining the concerned expert who conducted DNA test of the child. He is a very vital witness and he ought to have been examined in the court below. Mere taking the report as permissible document under Section 293 of the Code of Criminal procedure will not do. It reads as under: "Section 293 Reports of certain Government Scientific experts (1) Any document purporting to be a report under the hand of a Government Scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subjectmatter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in court in his behalf. ... " It is well settled principle of law that no person shall be denied of due process of law. The O.P. did not get any chance to confront the Officer who prepared the DNA report. This is very vital inasmuch as the O.P. also took the plea in the learned court below that the child was fathered by one Nure Alam Mirza. The learned trial court did not make any endeavour to consider such aspect too. So, I am of the view that the proper appreciation of facts and circumstances were not done in the learned court below and hence justice demands that a fresh look and appreciation over the case under Section 125 of the Code of Criminal Procedure is required. The case under Section 125 of the Code of Criminal Procedure be decided afresh after getting opportunity to both sides to adduce further evidence including the examination of the expert who submitted DNA test report. In this regard, I am also not unmindful of the fact that the petitioner is an unfortunate woman having given birth to a child while remaining as spinster. She took the plea of her helplessness to maintain the child in view of her stated economic condition. So, to throw her back to court for retrial of the case under Section 125 of the Code of Criminal Procedure may cause further hardship to her from economic point of view. But it is thought that she may, if desires, seek for legal assistance from Sub-divisional Legal Services Authority, Jangipur for providing with a Learned Advocate to fight out the case. Accordingly, the criminal revision no. 196 of 2012 stands disposed of with above observation and direction given to the learned 2nd court of Judicial Magistrate, Jangipur to allow the parties to adduce evidence strictly in respect of the aforesaid aspects and come to a fresh finding preferably within three months from the date of receipt of this order without giving adjournment except on extremely unavoidable circumstances. The criminal revision is thus disposed of. I pass no order as to costs. Urgent Photostat certified copies, if applied for, be supplied according to rules. ;