Surender Singh Kadian v. Kusum Thakur

Mr. Naveen K. Bhardwaj, Advocate. For the respondent: Mr. Vinay Sharma and Ms. Seema Guleria, Advocates. V.K. Ahuja, J. (Oral): The present petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, has been filed by the petitioner/husband, against the orders passed by the learned Judicial Magistrate 1st Class, Dharamshala, dated 24.5.2012 as well as order dated 9.2.2012.

A notice of the petition was issued to the respondent.

I have heard learned counsel for the parties and have gone through the record of the case. 1Whether reporters of Local Papers may be allowed to see the judgment? 2

Briefly stated, the facts of the case are that a petition under Section 125 Cr.P.C. was filed by the respondent as against the petitioner for the grant of maintenance. During the pendency of the petition, an application for grant of interim maintenance to the extent of ‘ 20,000/- P.M. was filed by the respondent/wife as against the petitioner/husband. The said application was allowed by the Court vide its order dated 24.5.2012. One of the orders under challenge is the said order dated 24.5.2012, vide which the respondent was granted interim maintenance at the rate of ‘ 10,000/- P.M.

Learned counsel for the petitioner has submitted that the respondent had wrongly alleged that the petitioner was serving in six institutions at one time and was earning more than ‘ 50,000/- P.M. by working as Lecturer/Principal in various colleges in Punjab, Himachal Pradesh and Haryana. No record was produced by the respondent to prove that the petitioner was serving in six institutions, how much he was getting salary and in all, he was getting ‘ 50,000/- P.M. by working in six institutions at the same time in three States.

The learned trial Court in the impugned order has not referred to any salary certificate and other proof in regard to the income of the present petitioner. It was only observed as under:- (cid:147)Various documents filed by the applicant, goes to show that the respondent is working in various educational institutions in the States of Punjab, Haryana and Himachal Pradesh and he is earning substantially. However, the parties are yet to be examined and the documents are yet to be exhibited. (cid:148)

There is no reference to the documents what they prove, or the income which the petitioner was deriving from these six institutions and how much in all, he was held to be getting as pay/ 3 salary from these institutions. The learned trial Court made a reference that various documents have been filed to show that he was working in educational institutions in the States of Punjab, Haryana and Himachal Pradesh and is earning substantially. How the petitioner could work in various institutions at the same time and how much salary he was getting, has not been referred to or observed, but the learned Magistrate proceeded to hold that these assertions are sufficient as levelled by the respondent/wife and interim maintenance of ‘ 10,000/- P.M. was granted.

It was required of the Court to refer the documents in detail the income being derived by the petitioner and as to whether he could get such income by working in various institutions in three States and should have concluded as to how much income the petitioner was deriving by referring to the various documents. However, the learned Magistrate appeared to be in hurry to dispose of the application and without referring to the various documents or drawing any conclusion, granted an interim maintenance at the rate of ‘ 10,000/- P.M., when the allegations of the petitioner were that he was getting only ‘ 6,000/- P.M. by working in the school. The contentions of both the parties should have been considered by the Court and documents should have been referred to before awarding maintenance at the rate of ‘ 10,000/- P.M. Therefore, the impugned order passed by the learned trial Court is liable to be set aside, since the interim maintenance appears to be excessive and, therefore, the application shall be reconsidered by the learned trial Court, as and when the record of the case is received, keeping in view the assertions made and the documents placed on record. The impugned order dated 24.5.2012 is set aside accordingly. 4

Learned counsel for the petitioner has pointed out to the order dated 23.3.2012. Learned trial Court has observed in its order sheet dated 23.3.2012 as under:- (cid:147)Separate reply filed to the application for clerical mistake to the main petition and the interim application. Copy supplied. At this stage it has been pointed out by the ld. Counsel that an application filed for attachment of account of the respondent by the opposite counsel and the same application was disposed by this court. However, the order of the said application is not in the file. The counsel for the petitioner filed certified copy of this order passed by this court on 09/02/2012. Cr. Ahlmd is directed to trace the said order passed by this court and tag it on the file. Put up for further proceedings on 03/05/2012.(cid:148)

The said order dated 9.2.2012 is not on record. During the course of arguments, learned counsel for the respondent has produced a copy of the order dated 9.1.2012. A perusal of the record, at Page 195 of the trial Court file, shows that the said order was passed on

9.1.2012, a photo copy of which is referred to as Annexure PX, filed today in Court by respondent(cid:146)s counsel, which be taken on record of the case file of this Court. It is clear that the learned trial Court had wrongly observed that there is some order dated 9.2.2012, but does not find corroboration from the order, but some order appears to have been dictated on 9.1.2012, but it was never signed by the learned Magistrate.

Brief facts leading to passing of the said order, if any, are that an application was filed the respondent for attachment of the account of the petitioner and till the final disposal of the case, which is at Page 197 of the trial Court file. The said application was filed on

4.1.2012 and office was directed to report on 7.1.2012. Thereafter, some order was passed on 7.1.2012 that P.O. is on leave and put up for 5 proper order on 9.1.2012. On 9.1.2012, the order allegedly was passed as per Annexure PX. The said order was never signed by the learned Magistrate, but an attested copy of the order was given by some official of the Court of Civil Judge (Junior Division)-cum-JMIC-I, Dharamshala and the same was also produced before the Bank authorities by the respondent/wife on 12.1.2012 at 12.35 PM, as per copy Annexure PX produced today by the learned counsel for the respondent, during the course of hearing.

Apart from the above, when the main case was fixed for

10.1.2012, how the learned trial Court took cognizance of the case and passed the orders on the application without notice to the present petitioner. It is, therefore, clear that some fabrications has been done by the official of the office of Civil Judge-cum-JMIC-I, Dharamshala, in giving the attested copy as true copy and sent it to the Bank authorities through the respondent, though the order was never signed by the learned Magistrate. Therefore, an inquiry needs to be held in this regard as to how the attested copy of the order was sent to the Bank authorities under the signatures of the official of the trial Court that the said order has been passed, when the said order was never signed by the learned Magistrate. Thereafter, on the said application, which was for release of the amount, the learned Magistrate passed the order on 19.6.2012 by observing that it has been mentioned in the application that vide order of this Court dated 9.1.2012, the account was seized and a sum of ‘ 1,40,000/- was directed to be released in favour of applicant Kusum. While passing the order on 19.6.2012, the learned Magistrate only referred that it has been mentioned that there is order of the Court dated 9.1.2012, vide which the account was seized, but it was never mentioned that it was not signed by the learned 6 Magistrate himself. As to whether the said order exists or bears the signatures and simply assuming the allegation to be correct, the learned Magistrate passed the impugned order. Therefore, in my opinion, the learned Magistrate cannot escape his liability in passing the order dated 19.6.2012, which was illegal and was passed upon alleged order dated 9.1.2012, which was never on record and was never signed by the learned Magistrate. Therefore, these facts are required to be placed before the Hon(cid:146)ble Chief Justice for getting an inquiry conducted in regard to the conduct of the Judicial Officer as well as of the official, who issued the attested copy without their being any order or without having signatures of the Presiding Officer of the Court. The matter is serious one and needs to be probed accordingly. The file be put up before the Hon(cid:146)ble Chief Justice.

Keeping in view the above discussions, impugned orders dated 24.5.2012 and 9.1.2012/9.2.2012 as well as the order dated

A copy of this order be sent to the Hon(cid:146)ble Chief Justice through the Registrar General and the record of the case be retained till the disposal of the inquiry as against the concerned Magistrate as well as against the official(s). December 13, 2012 (BSS) ( V.K. Ahuja ), Judge