Allahabad High Court
Santosh Kumar Vishvakarma vs State Of U.P. Thru. Prin. Secy. Home & ... on 11 February, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 7520 of 2019 Applicant :- Santosh Kumar Vishvakarma Opposite Party :- State Of U.P. Thru. Prin. Secy. Home & Ors. Counsel for Applicant :- Parijat Mishra Belavra,Ashutosh Dhar Dubey,Chandra Shekhar Shukla Counsel for Opposite Party :- G.A.,Virendra Mishra R-2,Vyas Narayan Shukla Hon'ble Chandra Dhari Singh,J.
The instant petition under Section 482 of Cr.P.C. has been filed by the petitioner with the following prayers:
"(1) to quash the order dated 30.09.2019 passed by Family Court-III, Sultanpur in Criminal Misc. Case No.111 of 2019 (Sunita Vs. Santosh Kumar), under Section 128 Cr.P.C.
(2) to stay the further proceeding of Criminal Misc. Case No.884 of 2014: Smt. Sunita Vs. Santosh Kumar, under Section 128 Cr.P.C. pending before Additional Principal Judge, Court No.3, Sultanpur.
(3) to direct the court below to verify as to whether photograph of Domicile Certificate, Ration Card of Guddi wife of Ajay Kumar (opposite party no.3) and photograph on Ro Form dated 24.07.2015, Aadhar Card of Sunita (D/o Hauman) W/o Santosh Kumar (OP No.2) are of same lady by Team of some expert body.
(4) to direct the court below to initiate suitable criminal proceeding against opposite party no.2.
(5) otherwise petitioner would suffer irreparable loss and injury which cannot be made good in any event."
Learned Counsel for the petitioner has submitted that the marriage of petitioner and Sunita (opposite party no.2) was solemnized in the year 2004 as per Hindu rites and rituals. Opposite party no.2 on account of some dispute left her matrimonial home and filed an application under Section 125 of Cr.P.C. which was registered as Misc. Case No.318 of 2007 (Sunita Vs. Santosh Kumar). The said application was allowed vide order dated 22.05.2009 with a direction to the petitioner to pay Rs.2000/- per month to the wife from the date of application. Against the order dated 22.05.2009, the petitioner had filed Criminal Revision No.282 of 2009 (Santosh Kumar Vs. Smt. Sunita), which was dismissed vide order dated 06.01.2010 by the learned Additional Sessions Judge/ AFTC 4th, Court No.13, Sultanpur upholding the order dated 22.05.2009.
Learned Counsel for the petitioner has further submitted that after came to know that opposite party no.2 got married to one Mr. Ajay Kumar son of Mr. Ram Sukh, the petitioner had filed a complaint bearing No.988 of 2013 but the same was dismissed vide order dated 02.12.2015. In the meantime, the petitioner had also filed Criminal Misc. Case No.343 of 2013 (Santosh Kumar Vs. Sunita Devi) under Section 127 of Cr.P.C. with a prayer to reject the application of opposite party no.2 filed for maintenance from the date of marriage. The opposite party no.2 had also filed an application under Section 128 of Cr.P.C. which was registered as Criminal Misc. Case No.884 of 2014 and upon which recovery warrant was issued for recovery of arrears of maintenance and auction proceedings were initiated.
Learned Counsel for the petitioner has again submitted that aggrieved by the recovery warrant and auction proceedings, the petitioner had filed a writ petition before this Court bearing Writ Petition No.7812 (MS) of 2014 (Santosh Kumar Vs. State of U.P.), which was disposed of vide order dated 18.05.2015 staying the auction proceedings subject to payment of rupees one lakh and it was further directed that in case, the said amount is deposited, half of the amount shall be paid to the opposite party no.2. The abovesaid application filed under Section 127 of Cr.P.C. was dismissed for want of prosecution on 02.04.2015. The petitioner had again filed an application under Section 127 of Cr.P.C., which was also dismissed vide order dated 03.05.2018.
Learned Counsel for the petitioner has next submitted that on 20.08.2018, the petitioner had lodged an FIR No.0244 of 2018 dated 20.08.2018 under Sections 420, 494 IPC, Police Station Amethi against the opposite party no.2 and her father with the allegation that on one hand, the opposite party no.2 has got married to one Mr. Ajay Kumar and living with him as his wife and on the other hand, she is claiming maintenance from him. After conducting investigation, the Investigating Officer has submitted charge-sheet dated 25.09.2018 against the opposite party no.2 and her father under Sections 420, 494 IPC. Thereafter, the opposite party no.2 had filed a compromise dated 26.09.2018 before the Principal Judge, Family Court, Sultanpur in her Criminal Misc. Case No.884 of 2014 filed under Section 128 of Cr.P.C. The opposite party no.2 filed a petition before this Court bearing No.2939 of 2019 under Section 483 of Cr.P.C. for expeditious disposal of her application filed under Section 128 of Cr.P.C. The said petition was disposed of with a direction to the court concerned to decide the same within six months.
Learned Counsel for the petitioner has contended that without considering the facts as brought by the petitioner, the court below issued recovery and arrest warrant against the petitioner vide orders dated 25.09.2018 and 20.08.2019. Both the orders have been challenged by the petitioner before this Court in Criminal Misc. Case No.6398 of 2019 under Section 482 of Cr.P.C., which was disposed of vide order dated 09.09.2019 with a direction to the concerned court below to decide the objection of the petitioner filed in Criminal Misc. Case No.884 of 2014. Learned Counsel for the petitioner has further submitted that the learned Principal Judge, Family Court without considering the aforesaid facts has illegally and arbitrarily passed the impugned order dated 30.09.2019 and the same is liable to be set aside.
Per contra, learned A.G.A. has vehemently opposed the submissions made by learned Counsel for the petitioner and submitted that there is no merit in the present petition filed under Section 482 of Cr.P.C. The impugned order dated 30.09.2019 has been passed by the learned Principal Judge, Family Court, Sultanpur after considering the entirety of the matter. The grounds taken by the petitioner for setting aside the impugned order is not sufficient and therefore, the instant petition is liable to be dismissed.
I have considered the submissions of learned Counsel for the parties and perused the record.
Admittedly, the petitioner and the opposite party no.2 are husband and wife and on account of some dispute, they are living separately and the petitioner no.2 moved an application under Section 125 of Cr.P.C. for maintenance, which was allowed vide order dated 22.05.2019 directing the petitioner to pay maintenance to his wife.
The petitioner has moved an application under Section 127 of Cr.P.C. for rejecting the application for maintenance on the ground that the opposite party no.2 has got married to another person but the same was dismissed for want of prosecution vide order dated 02.04.2015. Thereafter, the petitioner lodged an FIR against the opposite party no.2 and her father with the allegation that on one hand, the opposite party no.2 has got married to one Mr. Ajay Kumar and living with him as his wife and on the other hand, she is claiming maintenance from him but the petitioner has not produced any document which proves that the opposite party no.2 has got married to another person and therefore, the learned Court below has rightly passed the impugned order.
From the perusal of the impugned order as well as the material available on record, I do not find any good ground or reason to invoke extraordinary jurisdiction under Section 482 of Cr.P.C.
Accordingly, the instant petition under Section 482 of Cr.P.C. is dismissed.
Order Date :- 11.2.2020 akverma