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2016 DIGILAW 383 (GAU)

Santosh Kumar Mishra v. Poonam Mishra

2016-05-06

A.K.GOSWAMI, INDIRA SHAH

body2016
JUDGMENT : A.K. Goswami, J. On 10.02.2015, this Court had passed the following order:- “The petitioner remains absent without any step. In the last occasion also the petitioner remained absent and that too without any step. It appears that the petitioner is not interested in prosecuting his claim in the present proceeding. In view of above, the present proceeding is dismissed for non-prosecution.” 2. Thereafter, the petitioner filed an application under Section 482 of the Code of Criminal Procedure, 1973. The said application was registered as Crl. Misc. Case No. 170/2015. In the said application, the following prayers were made:- “(a) to vacate/recall/set aside/review the Order dated 10.02.2015 passed in by this Hon’ble Court in the Criminal Petition; and (b) and be pleased to pass necessary orders for restoration of the said Criminal Petition No. 736 of 2014 to the file; and (c) to appoint an amicus curiae into this Case; (d) to give such other and further reliefs as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the Petitioner.” 3. On 01.06.2015, the petitioner was absent and the Court passed the following order:- “The petitioner is absent today. This Court has engaged Ms. S. Jahan, learned Amicus Curiae to help the Court to dispose the present application and she is present before the Court today. In view of absence of the petitioner today, list the matter on 17.06.2015.” 4. Though the case was directed to be listed on 17.06.2015, the case was listed on 12.06.2015 and by an order passed on the said date, the Criminal Petition was restored to file. 5. Today, Mr. Santosh Kr. Mishra, the petitioner is personally present. So is Ms. S. Jahan, learned Amicus Curiae. Mr. Mishra has submitted that because of certain submissions made by Ms. S. Jahan on previous occasions, he does not want Ms. Jahan to argue the case on his behalf as, according to him, if Ms. Jahan conducts the case, merit of the case may be jeopardized. 6. Ms. Jahan has submitted that she had tried to discharge her responsibilities to the best of her ability and if the petitioner is harbouring some apprehension, it will be better for her if she does not appear in this Court. In view of the above, Ms. S. Jahan is relieved of her duties as an Amicus Curiae. 6. Ms. Jahan has submitted that she had tried to discharge her responsibilities to the best of her ability and if the petitioner is harbouring some apprehension, it will be better for her if she does not appear in this Court. In view of the above, Ms. S. Jahan is relieved of her duties as an Amicus Curiae. We are also of the opinion that no further appointment of an Amicus Curiae is called for. 7. We have heard Mr. Santosh Kr. Mishra, the petitioner in person. Also heard Mr. S.S. Sarma, learned senior counsel appearing for the respondent No.1 and Mr. T.J. Mahanta, learned senior counsel appearing for the respondent No.2. 8. By this petition, the petitioner prays for an enquiry as contemplated under Section 340 of the Code of Criminal Procedure, 1973 and thereafter, to proceed against the respondents in accordance with law. 9. Before we proceed to appreciate the contentions of Mr. Mishra, it will be appropriate to have a brief summary pertaining to the application under Section 125 Cr.PC, which the respondent No.1 had filed praying for maintenance allowance to herself and the son of the petitioner and the respondent No.1, namely, Master Ayush Mishra, as this petition has its roots in the said proceeding. The said petition was registered as F.C. (Crl.) Case No.212/2011 in the Court of the learned Principal Judge, Family Court-II, Kamrup at Guwahati. The petitioner had filed written statement through post, as is evident from the order dated 13.02.2012. 10. The petitioner is a Scientific Officer of Bhaba Atomic Research Centre (BARC) and based in Mumbai. For reasons which may not detain us for adjudication of this proceeding, suffice is to say that on failure of the petitioner to appear before the Family Court, an order dated 28.02.2013 came to be passed granting an amount of Rs.10,000/- (Rupees Ten Thousand) per month to the respondent No.1 and Rs.5,000/- (Rupees Five Thousand) to the child, till he attains majority, as maintenance allowance from the present petitioner. By the said order dated 28.02.2013, 02.04.2013 was fixed for payment. 11. Aforesaid order dated 28.02.2013 was put to challenge by Mr. Mishra in Criminal Revision Petition No. 485/2013 before this Court and this Court set aside the order dated 28.02.2013 by an order dated 09.05.2014. By the said order dated 28.02.2013, 02.04.2013 was fixed for payment. 11. Aforesaid order dated 28.02.2013 was put to challenge by Mr. Mishra in Criminal Revision Petition No. 485/2013 before this Court and this Court set aside the order dated 28.02.2013 by an order dated 09.05.2014. The operative portion of the said order reads as follows:- “Admittedly the impugned judgment has been passed ex-parte, albeit, after filing of the written statement by the second party. The petitioner submitted that he is a native of the State of Bihar and working at Mumbai and because of this difficulty he could not cross- examine the first party's witnesses nor could give evidence in defense. The petitioner further submitted that after filing of the revision application, the petitioner has already deposited a sum of Rs.2,00,000/- (Two Lakhs) in the High Court registry for maintenance of the minor son. Upon hearing the learned counsel for both the sides and in view of the submissions, the impugned judgment is hereby set aside. The Family Court is directed to decide the case afresh by giving opportunity to the first party to adduce additional evidence to prove income of the second party. The High Court registry is directed to release the amount of Rs.2 Lakhs to the respondent herein after obtaining proper receipt. This amount shall be made subject to the outcome of the maintenance allowance in the trial court. Similarly, the petitioner/second party shall be allowed to cross-examine the first party witnesses and also adduce evidence in defence. Before parting with the case the Family Court is also directed to furnish copies of the deposition to the petitioner in English since he is not well versed with the vernacular language. With the aforesaid directions, the criminal revision petition stands disposed of.” 12. Mr. Mishra has submitted that the order-sheet maintained by the learned trial Court makes no reference to the order dated 28.02.2013 and, therefore, the authenticity of the said order is open to question. Drawing attention of the Court to Page-75, which is a copy of the cause-list for 02.04.2013, Mr. Mishra submits that the cause-list shows that the case was allowed on contest fixing 26.06.2013 for payment and date 26.06.2013 is, on the face of it, over-written. Drawing attention of the cause-list for 02.04.2013, Mr. Drawing attention of the Court to Page-75, which is a copy of the cause-list for 02.04.2013, Mr. Mishra submits that the cause-list shows that the case was allowed on contest fixing 26.06.2013 for payment and date 26.06.2013 is, on the face of it, over-written. Drawing attention of the cause-list for 02.04.2013, Mr. Mishra submits that it appears that maintenance order was passed on two dates, namely, 28.02.2013 and 02.04.2013, which itself demonstrates that there are anomalies and manipulations. By the order dated 02.04.2013, the case was directed to be posted on 02.05.2013 for necessary order. However, in the cause-list of 02.05.2013, case No.212/2011 was not reflected. Similarly, though there appears to be an order dated 02.05.2013 directing posting of the case on 03.06.2013, in the cause-list of 03.06.2013 also, the said case number was not reflected, he submits. It is further submitted that the respondent No.1 filed a petition before the learned Family Court for deducting maintenance amount from the salary of the present petitioner, wherein the respondent No.1 made a false statement that she had issued notice to the petitioner. It is pointed out by Mr. Mishra that the address given in Paragraph 3 of the said petition is not his address and based on such version of the petitioner regarding issuance of notice, the learned Family Court passed an order dated 03.07.2013 directing the Controller, BARC to deduct arrear maintenance of Rs.3,75,000/- (Rupees Three Lakhs Seven Five Thousand) and monthly maintenance allowance of Rs.15,000/- (Rupees Fifteen Thousand) from the salary of the petitioner. It is submitted by him with reference to the letter of the Principal Judge, Family Court-II dated 07.06.2014, which is a report by the Principal Judge to the Registrar (Vigilance), that no notice was issued as per order dated 02.05.2013. He has further pointed out with reference to Page-93 of the petition that after passing of the order dated 03.07.2013, the respondent No.1 purported to have submitted some documents, on 21.10.2013, as will be reflected by the date indicated over the Court-fee stamps, which is a gross irregularity. In substance, he has submitted that the respondent No.2, the Judicial Officer, has manipulated the records in collaboration with the respondent No.1 and, therefore, appropriate action may be initiated by this Court. In substance, he has submitted that the respondent No.2, the Judicial Officer, has manipulated the records in collaboration with the respondent No.1 and, therefore, appropriate action may be initiated by this Court. He has also submitted that irrespective of the Court proceedings, he would like to make some remittances to his son and, therefore, he had earlier requested Mr. S.S. Sarma, learned senior counsel appearing for the respondent No.1 to furnish him a bank account number of his son so that the petitioner, on his own volition, may deposit some amount at his convenience, but he is not favoured with the account number till date. 13. Mr. S.S. Sarma has submitted that an account is opened in Punjab National Bank, Maligaon Branch, Guwahati in the name of Master Ayush Mishra with S/B Account No. 4589000100045145 and IFSC Code: PUNB0458900 and submits that if Mr. Mishra desires and is willing to deposit any amount in favour of Master Ayush Mishra, he may do so. 14. Mr. S.S. Sarma, learned senior counsel appearing for the respondent No.1 has submitted that the respondent No.1 is in no way responsible for any shortcomings in maintenance of the records of the Court. He, however, submits that the documents annexed, more particularly, the documents referred to by the petitioner at Page-75 and Page-79 would indicate that the case was not reflected in the cause-lists on the aforesaid dates. He had also indicated that date shown against the case number on the cause-list dated 02.04.2013 is over-written, apparently from “03.06.2013” earlier written, to “26.06.2013". With regard to issuance of notice, as stated in Paragraph 3 of the petition dated 03.07.2013, it is submitted by making a reference to Paragraph 13 of the affidavit that the notice was sent by registered post at her cost. He has submitted that, as on today, in view of setting aside of the order dated 28.02.2013 by this Court vide order dated 09.05.2014, no amount is due and payable by the petitioner to the respondent No.1 and/or to her son on account of maintenance. He has also submitted that all amounts deposited by the petitioner pursuant to the orders of the Court had since been withdrawn. 15. Mr. Mahanta has submitted that the petitioner had made needless and baseless allegations against a Judicial Officer without any basis and, therefore, appropriate proceeding be initiated against him. He has also submitted that all amounts deposited by the petitioner pursuant to the orders of the Court had since been withdrawn. 15. Mr. Mahanta has submitted that the petitioner had made needless and baseless allegations against a Judicial Officer without any basis and, therefore, appropriate proceeding be initiated against him. He has also submitted that after the order of maintenance is passed, an execution diary is maintained to give the dates for payment. He has produced a copy of the execution diary (photocopy) to demonstrate his point. He has submitted that there is nothing on record to show that there was any tempering of judicial records by the respondent No.2 and if there are some lapses in respect of ministerial works to be undertaken by the staff of the Court, the Judicial Officer cannot be entangled and castigated, thereby scandalising the Court. The petitioner had chosen to remain absent all throughout the proceeding and after the passing of the maintenance order, he is making these baseless allegations, Mr. Mahanta submits. 16. We have considered the submissions of Mr. Mishra, the petitioner in person, and the learned counsel appearing for the respondents. We have also perused the records of the case called for earlier. Such records, however, do not contain the original of the execution diary. Though photocopy of Execution Diary is produced by Mr. Mahanta, who represents a Judicial Officer, in the facts of the case, we see no reason not to take note of the said Diary. 17. The order dated 13.02.2012 discloses that the petitioner filed written statement through post. The petitioner, in the intervening 7(seven) dates prior to 20.12.2012, did not appear. On 20.12.2012, the case was fixed for arguments on 18.02.2013. The next date in the order-sheet is written by hand as 18.02.2012. Apparently there is a mistake in recording the date, as it should have been 18.02.2013. The order dated 18.02.2012 (sic) reflects that the case was fixed on 28.02.2013 for judgment/order. What is contended by Mr. Mishra is that after “18.02.2012” the next date is shown in the order-sheet as 02.04.2013 and, therefore, he has submitted that there is manipulation of Court order and the existence of the order dated 28.02.2013 is doubtful. 18. We do not agree with him. What is contended by Mr. Mishra is that after “18.02.2012” the next date is shown in the order-sheet as 02.04.2013 and, therefore, he has submitted that there is manipulation of Court order and the existence of the order dated 28.02.2013 is doubtful. 18. We do not agree with him. Order dated 28.02.2013 is an order running into 6(six) pages and in that order, 02.04.2013 was fixed for payment and accordingly, 02.04.2013 was reflected in the order-sheet. Merely because separately no order was passed indicating that judgment is pronounced, when there is already an order dated 18.02.2012 (sic) fixing pronouncement of the judgment on 28.02.2013, in our considered opinion, the submission advanced that there is manipulation of Court record, cannot be accepted. 19. From the cause-lists which have been annexed by the petitioner, we find that at Page-72, which is a cause-list for 28.02.2013, the case No.212/2011 is reflected indicating the next date to be 02.04.2013 for pay. In the cause-list of 02.04.2013, unmistakably, in terms of the order dated 02.04.2013, 02.05.2013 is not reflected but what was reflected, as it appears to us, the date 03.06.2013, which is subsequently over-written as 26.06.2013. In the cause-list of 02.05.2013, 03.06.2013 as well as 03.07.2013, the case number is not reflected. 20. With regard to the over-writing in the cause-list of 02.04.2013, to read the same as 26.06.2013 instead of 03.06.2013, we are of the opinion that not much can be read into it in the facts of this case as the cause-list remains accessible to all in the Court premises. It is well known that the cause-list is prepared after the Court passes the order. If there is a defective cause-list or there is lack of proper maintenance of the cause-list, which is a ministerial task, the Presiding Officer of the Court cannot be indicted for any wrong doing. It appears that due attention was not paid in preparation of the cause-list. When there is an Execution Diary listing the dates fixed for payment, Case No.212/2011 ought not to have been shown in the general cause-list for 02.04.2013. Mr. Mahanta has, however, sought to explain that 02.04.2013 was the first date after the maintenance order was passed and there is, therefore, a possibility of overlooking the same and that is how perhaps the case was reflected in the general cause-list for 02.04.2013. 21. The submissions of Mr. Mr. Mahanta has, however, sought to explain that 02.04.2013 was the first date after the maintenance order was passed and there is, therefore, a possibility of overlooking the same and that is how perhaps the case was reflected in the general cause-list for 02.04.2013. 21. The submissions of Mr. Mishra that the application filed by the respondent No.1 was allowed on two dates, namely, on 28.02.2013 and on 02.04.2013, is apparently fallacious. The indication that the case was allowed in the cause-list dated 02.04.2013 is merely a reflection of the order that was already passed on 28.02.2013. In any case, orders are passed by the Presiding Judge and the case records demonstrate that grant of maintenance was passed on 28.02.2013. 22. In the document at Page-93, over the Court-fee, date “21.10.2013” is noted. The same is not the date of presentation of the application but this is a date on which the certified copy was furnished and, therefore, the submission advanced that Page-93 document, by which documents were submitted by the respondent No.1, after the order dated 23.07.2013 was passed, is also not correct. There is a signature of the respondent No.1 on the last page of the document with the date as 08.05.2012, which is much prior to the date of passing of the order dated 23.07.2013. 23. We have also perused the letter dated 07.06.2014 of the Principal Judge, Family Court-II, which affirms the contention of Mr. Mishra that no notice was issued pursuant to the order dated 02.05.2013. However, the petitioner had sought to explain that she had taken the registered post herself. In the affidavit filed, it is stated that address of C/o Controller, BARC was given to apprise the said Officer about the case. Whether or not it was permissible to take steps in such manner is a different matter altogether. However, the letter dated 07.06.2014 indicates that notice was issued as per the order dated 03.06.2013 and because of not mentioning the number and for not retaining a copy thereof, concerned dealing assistant, Shri Pradip Kalita, was directed not to make any such mistake in future. 24. On an overall consideration of the documents presented before us and the records of the Family Court, we are clear in our minds that no manipulation of the judicial records had taken place. 24. On an overall consideration of the documents presented before us and the records of the Family Court, we are clear in our minds that no manipulation of the judicial records had taken place. There are some shortcomings in maintenance of cause-list, no doubt, as pointed out in our earlier part of this order. But the same will not amount to manipulation of Court records resulting in subversion of justice. The Court is not unmindful of the fact that in order to maintain purity of administration of justice, if there is manipulation of Court records, the Court will be duty bound to take consequential actions. 25. In all probability, it appears to us that having not noticed the case in the subsequent dates in the general cause-list, namely, on 02.05.2013, 03.06.2015 and 03.07.2013, the petitioner had harboured a feeling that something is amiss and, therefore, had come up with this application before this Court. Though Mr. Mahanta has submitted that for scandalizing the Court Mr. Mishra should be proceeded against, in the background of the facts narrated hereinabove, we think that matter should rest here. We, however, feel that Mr. Mishra could have possibly used more temperate language. Be that as it may. 26. We would like to put on record that in view of the order dated 09.05.2014 passed by this Court setting aside the order dated 28.02.2013, necessarily, all consequential orders including the order for deduction of salary of the petitioner is no longer in existence. 27. The petitioner and the respondent No.1 will appear on 01.06.2016 before the Principal Judge, Family Court-II, Kamrup at Guwahati to take further orders from the learned Court. The learned Family Court, having regard to the fact that the proceeding was initiated in the year 2011, shall make an endeavour to close the proceeding under Section 125 Cr.PC by 31.12.2016. 28. Before parting with the records, we would like to make a request to the Presiding Judge of the Family Court to take such steps as may be necessary to ensure that the cases fixed are correctly reflected in the cause-list and the case diary so that no inconvenience is caused to any litigant public. 29. The Registry is directed to send down the LCR to the learned trial Court forthwith.