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2019 DIGILAW 1048 (GAU)

Akash Mukesh Sharma v. Uttam Chetri

2019-09-16

UJJAL BHUYAN

body2019
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. MK Sarma, learned counsel for the petitioners and Mr. A Biswas, learned counsel for the respondent. 2. This petition has been filed under Sections 10 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India alleging willful and deliberate disobedience by the respondent to the order of the appellate court dated 27.03.2019 i.e., passed by the Addl. Sessions Judge No. 1, Kamrup (M) at Guwahati in Crl. Appeal No. 44/2019. 3. One Smti. Nandini Sharma filed a case against the petitioners under Section 12 of Protection of Women from Domestic Violence Act, 2005. Petitioner No. 1 is the husband and petitioner No. 2 is the mother-in-law of Smti. Nandini Sharma. The case was registered as Misc. Case No. 40/2014 and was adjudicated upon by the Sub-Divisional Judicial Magistrate (S) No. II, Kamrup (M) at Guwahati. It appears that various orders were passed by the Magistrate for payment of maintenance by the petitioners to the wife. Subsequently, for nonappearance in Misc. Case. No. 40/2014, the trial magistrate i.e., Sub-Divisional Judicial Magistrate (S) No. II, Kamrup (M) at Guwahati issued orders dated 22.04.2016, 02.09.2016 and 13.02.2019 whereby non-bailable warrant of arrest and proclamation and attachment were issued against both the petitioners. 4. Against such orders, the two petitioners preferred Crl. Appeal No. 44/2019 which was taken up by the Court of Addl. Sessions Judge No. 1, Kamrup (M) at Guwahati. By the judgment and order dated 27.03.2019, the appeal was disposed of by giving liberty to the petitioners to participate in the proceedings of Misc. Case No. 40/2014 and setting aside the orders dated 22.04.2016, 2.9.2016 and 13.02.2019 on condition that the two petitioners should deposit arrear maintenance amount payment to the wife Smti. Nandini Sharma before the trial court. The demand draft of Rs. 1,60,000.00 deposited by the petitioners before the appellate court was directed to be handed over to the wife. 5. Thereafter Misc. Case No. 40/2014 was taken up by the Sub-Divisional Judicial Magistrate (S) No. II, Kamrup (M) at Guwahati on 31.05.2019. While the wife was present, the two petitioners were absent. Sub-Divisional Judicial Magistrate allowed the wife to receive demand draft of Rs. 40,000.00 as well as the demand draft of Rs. 1,60,000.00. The case was fixed on 1.7.2019 for appearance/written objection by the petitioners who are respondents in the Misc. While the wife was present, the two petitioners were absent. Sub-Divisional Judicial Magistrate allowed the wife to receive demand draft of Rs. 40,000.00 as well as the demand draft of Rs. 1,60,000.00. The case was fixed on 1.7.2019 for appearance/written objection by the petitioners who are respondents in the Misc. Case. Alleging that appellate court's order was not complied with, this petition has been filed. 6. As would be evident from the above, the appellate court's order was conditional. It was provided that the orders issuing non-bailable warrant of arrest and proclamation and attachment would stand quashed on condition that the two petitioners deposit the arrear maintenance amount payable to the wife before the trial court. A perusal of the order dated 31.05.2019 would go to show that the learned Sub-Divisional Judicial Magistrate had allowed the wife to receive the two demand drafts of Rs. 40,000.00 and Rs. 1,60,000.00. Reverting to the appellate order, it is seen that it is the appellate court which had set aside the non-bailable warrant of arrest and proclamation and attachment subject to deposit of arrear maintenance amount. Therefore, the Sub-Divisional Judicial Magistrate was not required to pass separate order for setting aside of the non-bailable warrant of arrest and proclamation and attachment; the same having already been set aside by the appellate court on condition. 7. In such circumstances, the contempt petition appears to be wholly misconceived; rather frivolous. That apart, dragging a judicial officer discharging judicial functions in the course of his judicial duty to a contempt proceeding is not at all justified and such a practice needs to be deprecated. The two petitioners facing proceedings under Protection of Women from Domestic Violence Act, 2005 ought not to have dragged a judicial officer into the dispute that they are having with the wife. 8. While it is true that there is no immunity to a judicial officer from contempt proceeding, everybody being equal before the law, at the same time one has to be circumspect when an allegation of contempt is made against a judicial officer, that too, by a litigating party. That apart, it is trite that contempt jurisdiction cannot be allowed to be used for the purpose of execution of any order. 9. This contempt petition is therefore dismissed with cost of Rs. That apart, it is trite that contempt jurisdiction cannot be allowed to be used for the purpose of execution of any order. 9. This contempt petition is therefore dismissed with cost of Rs. 5000.00 to be deposited by the petitioners to the High Court Legal Services Committee within a period of 15 days from the date of this order. Dismissed.