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2017 DIGILAW 788 (JK)

Vijay Kumar v. Barkha Rani

2017-09-01

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. This petition under Section 561-A Cr.P.C. has been preferred seeking quashing of orders dated 20.02.2017, 14.03.2017 & 09.05.2017 passed by learned Chief Judicial Magistrate, Rajouri. 2. JUDGMENT : 1. This petition under Section 561-A Cr.P.C. has been preferred seeking quashing of orders dated 20.02.2017, 14.03.2017 & 09.05.2017 passed by learned Chief Judicial Magistrate, Rajouri. 2. Facts giving rise to the instant petition are; that the petitioner was married to Smt. Nirmala Kumari on 12.11.1992 in accordance with Hindu rites and ceremonies and out of the said wedlock, two children namely Isha Kumari (daughter) and Sahil Bhatti (son) were born; that petitioner was a soldier in the Indian Army and upon completing his service he was discharged from service on 31.05.2007; that certificate issued by the Indian Army clearly reflects the names of the family members of the petitioner viz., Smt. Nirmala (wife), Isha Kumari (daughter) and Sahil Bhatti (son); that after his discharge, the petitioner is receiving pension to the tune of Rs.17,263/- which is credited in his saving bank account No.30071215818 in the SBI Satwari; that petitioner holds a joint account with his wife bearing No.10256194476 in the SBI Satwari; that in the year 1991, respondent No.2 had filed an application under Section 488 Cr.P.C. seeking maintenance from the petitioner claiming to be his wife; that upon notice service on the petitioner, he informed the Court that respondent No.2 was not his wife and he never married her; that petitioner also filed a civil suit for declaration in the Court of learned CJM Jammu for the relief of declaration that respondent No.2 is a stranger to him and the learned Court vide its judgment/decree dated 19.05.1995 allowed the said suit and passed an ex parte decree for declaration that the respondent No.2 is not the legally wedded wife of the petitioner; that respondent No.2 gave birth to a female child on 13.02.1991 (respondent No.1); that a bare perusal of the birth certificate shows that in the column of the name of the father, it is entered ‘Najayaz’; that the name of the father of respondent No.1 at the time of her birth not shown to be that of the petitioner; that respondent No.2 after having succeeded in getting an ex parte order of maintenance for herself, preferred an application under Section 488 Cr.P.C. on behalf of respondent No.1 in the Court of Chief Judicial Magistrate, Rajouri against the petitioner; that upon receiving notice, the petitioner filed objections to the application and categorically denied the marriage between him and respondent No.2 and also denied that respondent No.1 is his daughter; that an ex parte order of maintenance was passed against him on 29.11.1997; that order dated 29.11.1997 also refers to another ex parte order being order dated 23.03.1991, which says that respondent No.2 is the wife of petitioner; that both the orders dated 23.03.1991 and 29.11.1997 have been passed in the absence of petitioner; that finding returned in both the orders is without there being any concrete proof of the marriage between the parties; that learned Court below has failed in giving a categorical and specific finding with regard to the paternity of respondent no.2; that petitioner is living out of the State in search of some job and he was shocked when his wife informed that both his accounts have been seized by the order of the Court of learned CJM Rajouri; that wife of the petitioner managed to receive the copies of three orders passed by learned Chief Judicial Magistrate, Rajouri, whereby directing that the saving bank account Nos. 30071215818 & 10256194476 be seized and money to the tune of Rs.50,000/- and Rs.76,000/- be deducted from the pension account No.30071215818 and an amount of Rs.70,000/- be deducted from the account no. 10256194476. 3. Learned counsel for the petitioner has assailed the impugned orders dated 20.02.2017, 14.03.2017 & 09.05.2017 on the ground that the same are based on factually incorrect assumptions and legally not sustainable, inasmuch as they have been passed behind the petitioner without giving him any notice or opportunity of being heard. The impugned orders have been passed against the wife of the petitioner who is neither a party in the main petition under Section 488 Cr.P.C. nor has a party to the application in which the order impugned been passed. Thus, the impugned orders are bad in the eye of law for having been passed against a person who is not party to the lis and deserve to be set aside. It is submitted that the impugned order also deserves to be set aside as the deduction as directed to be made from the pension account of the petitioner which is impermissible under law. The learned trial Court has treated the issue of parentage of respondent No.1 and the legal status of respondent No.2 vis a vis the petitioner in a most casual, routine and perfunctory manner. 4. Heard learned counsel for the parties, gone through the impugned orders and considered the law on the subject. 5. Petitioner has assailed three orders dated 20.02.2017, 14.03.2017 & 09.05.2017 passed by Court below. 6. Order dated 20.2.2017, would reveal that it has been passed by court below in execution petition filed by respondent for seizure of account no. 30071215818 of SBI Branch Jammu cantt. as an amount of 94000/- was due against petitioner. Court vide this order directed the Manager Bank to deduct an amount of Rs.50,000/- from this account and send the same to official account of Court. 7. Order dated 14.3.2017, would reveal that it has been passed by court below in execution petition filed by respondent for seizure of joint account no.10256194476 of SBI Branch Satwari, Jammu on the name of petitioner and one Nirmal Kumari as an amount of 94000/- was due against petitioner, which he is not paying. 7. Order dated 14.3.2017, would reveal that it has been passed by court below in execution petition filed by respondent for seizure of joint account no.10256194476 of SBI Branch Satwari, Jammu on the name of petitioner and one Nirmal Kumari as an amount of 94000/- was due against petitioner, which he is not paying. So Court vide this order directed the Manager Bank to deduct an amount of Rs.70,000/- from this account and send the same to official account of Court. 8. Order dated 09.5.2017, would reveal that it has been passed by court below in execution petition filed by respondent. Court below vide this order directed to deduct an amount of Rs. 76000/- from account 30071215818 of SBI Branch Satwari Cantt., Jammu and send the same to official account of Court. 9. It is worthwhile to mention here that Joint account holder of petitioner namely Nirmal Kumari has already filed 561-A of Cr.P.C. No .294/2017, which is pending. 10. Bare perusal of all these orders, it is evident that these all are interlocutory orders as these have been passed as steps ahead to final adjudication or disposal of execution petition of order of maintenance passed u/s 488 Cr.P.C.; all these orders are subject to modification, alteration and cancellation. 11. The ground taken that since it was pension amount lying in account, it was not deductable. This argument does not hold good, because once a pension amount is deposited in personal account of person, it become his personal money and it can be attached in execution of court order. Further, I do not find any illegality of law in the orders impugned, because Court below has attached the account of petitioner and has directed the bank to deposit the amount in the account of Court strictly according to law, because it is also a mode of execution of order of maintenance. It is procedural law which are meant for administration of justice; procedural law are hand maid tools of Court to do substantial justice. Petitioner is avoiding paying arrears of maintenance since 1991. The power under section 561-A Cr.P.C. can only be exercised in order to prevent abuse of process of law or to otherwise secure the ends of justice. It is procedural law which are meant for administration of justice; procedural law are hand maid tools of Court to do substantial justice. Petitioner is avoiding paying arrears of maintenance since 1991. The power under section 561-A Cr.P.C. can only be exercised in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving litigation. Law is also clear that when petitioner has alternate remedy available under law, this power cannot be exercised. 12. Hence this petition is dismissed. Petitioner may file application for modification, alteration or cancellation of orders before court below.