Ramesh Kumar vs State of U.P. and Another

S.C. Agarwal, J.—This application u/s 482 Code of Criminal Procedure has been filed with a prayer to quash the order dated 28.3.2009 passed by the A.C.J.M., Bhadohi in Case No. 60 of 2007, Anumapa Bharti v. Ramesh Bharti u/s 125/128 Cr.P.C., P.S. Aurai, Sant Ravi Das Nagar (Bhadohi) whereby the applicant was directed to pay a balance of arrears of maintenance allowance amounting to Rs. 1,71,500 to opposite party No. 2 Smt. Anupama Bharti.

Entire facts have not been given in the application u/s 482 Code of Criminal Procedure However, the facts emerging from the affidavit accompanying the application as well as the records of application u/s 482 No. 24957 of 2008, Smt. Anupama Bharti v. State of U.P. and Anr. decided on 23.8.2010 reveal that an application u/s 125 Code of Criminal Procedure was filed by Smt. Anupama Bharti against the applicant Ramesh Kumar which was registered as Case No. 322 of 2004. The application was allowed by exparte vide judgment and order dated 30.9.2004 by the A.C.J.M. Bhadohi and maintenance @ Rs. 500/-per month was granted. Smt. Anupama Bharti dissatisfied with the order passed by the Magistrate preferred a Criminal Revision No. 187 of 2004 before the Sessions Judge, Bhadohi. Notice of the revision was given to the husband Ramesh Kumar (the instant applicant) and after hearing both the parties, revision was allowed by judgment and order dated 28.2.2007 and the order passed by the Magistrate was modified and Ramesh Kumar was directed to pay maintenance allowance @ Rs. 3500/-per month to his wife Smt. Anupama Bharti w.e.f. 30.9.2004, the date of order passed by the Magistrate. Order dated 28.2.2007 was challenged by the husband before this Court by means of Criminal Revision No. 848 of 2007 which appears to be still pending but no interim stay was granted by the Court. In the meantime, Ramesh Kumar was filed an application u/s 126 Cr.P.C., which was registered as Case No. 161 of 2006 for setting aside the exparte order dated 30.9.2004, which was allowed by A.C.J.M. Bhadohi vide order dated 14.9.2007 and exparte order dated 30.9.2004 was set aside subject to payment of Rs. 500 as costs. The order dated 14.9.2007 was also passed exparte without hearing Smt. Anupama Bharti, who moved an application for setting aside the order dated 14.9.2007, which was registered as Misc. Case No. 129 of 2007. This application was also dismissed by the Magistrate vide order dated 22.2.2008.

The order dated 14.9.2007 and 22.2.2008 passed by the A.C.J.M. Bhadohi were challenged by Smt. Anupama Bharti before this Court by means of an application u/s 482 No. 24957 of 2008. After hearing both the parties, this Court, vide judgment and order dated 23.8.2010, allowed the application and orders dated 14.9.2007 and 22.2.2008 passed by the A.C.J.M. Bhadohi were set aside on the ground that as the order of maintenance passed by the Magistrate was confirmed and further modified by learned Sessions Judge in revision, the Magistrate had no right or jurisdiction to set aside the order dated 30.9.2004. At the time of admission of application u/s 482 No. 24957 of 2008, an interim order was passed by this Court on 13.10.2008 whereby operation of orders dated 14.9.2007 and 22.2.2008 passed by the A.C.J.M. was stayed and it was further submitted in case the applicant moves an application before the Magistrate for realization of maintenance allowance as awarded by the learned Revisional Court, the same shall be heard and disposed of in accordance with law. In pursuance of the aforesaid order of this Court, Smt. Anupama Bharti moved an application before the Magistrate for recovery of Rs. 1,71,500/-as arrears of maintenance allowance which was allowed and Ramesh Kumar the present applicant was directed to pay the same to his wife. The said order is under challenge in this application.

Heard Sri Rajesh Kumar, learned Counsel for the applicant as well as learned Counsel for the State.

Learned Counsel for opposite party No. 2 (wife) did not appear when the case was taken up in the revised list.

Learned Counsel for the applicant submitted that exparte order u/s 125 Code of Criminal Procedure granting maintenance dated 20.9.2004 having been set aside by the Magistrate, learned Magistrate was not justified in ordering the payment of any amount as maintenance and earlier, by order dated 22.2.2008, the Magistrate rejected the application of Smt. Anupama Bharti for setting aside the order u/s 126 Code of Criminal Procedure and therefore, no recovery could be made from the applicant. It was further submitted that the applicant deposited a sum of Rs. 7000/- before this Court in compliance of order dated 19.12.2008 for the purposes of reconciliation proceedings before the mediation centre and application u/s 128 Code of Criminal Procedure for enforcement of the order granting maintenance was set aside by the Magistrate on 28.3.2009 and therefore, he could not be directed for payment of maintenance allowance subsequently.

Learned AGA however supported the impugned order and submitted that the earlier order granting maintenance to opposite party No. 2 was not only confirmed in revision by learned Sessions Judge but also the amount of maintenance was enhanced from Rs. 500/-per month to Rs. 3500/- per month and after decision of the revisional court, the Magistrate had not jurisdiction to set aside the earlier exparte interim order dated 30.9.2004 and orders dated 14.9.2007 and 22.2.2008 passed by the A.C.J.M. Bhadohi have been set aside by another Bench of this Court vide judgment and order dated 23.8.2010 and therefore, there was no impediment in enforcement of order granting maintenance to Smt. Anupama Bharti. It was further submitted that the instant application was filed on 6.5.2009. During pendency of application u/s 482 No. 24957 of 2008 and after decision of aforesaid application u/s 482 No. 24957 of 2008, the instant application u/s 482 Code of Criminal Procedure has been rendered infructuous.

I entirely agree with the submission advanced by learned AGA. Since this Court in Criminal Misc. Application No. 482 No. 24957 of 2008 has set aside the orders dated 14.9.2007 and 22.2.2008 passed by the Magistrate, the order of the Magistrate dated 30.9.2004 granting maintenance as well as judgment and order dated 28.2.2007 passed by the Sessions Judge, Bhadohi Gyanpur in Criminal Revision No. 187 of 2004 stand revived and it has been decided that Smt. Anupama Bharti is entitled to receive maintenance allowance from the present applicant Ramesh Kumar @ Rs. 3500/-per month, this application u/s 482 Code of Criminal Procedure has been rendered infructuous and the Magistrate was fully justified in ordering the applicant to pay maintenance allowance to his wife.

In the instant application, the applicant has totally concealed the fact that exparte order of maintenance was not only affirmed by also modified and the maintenance allowance enhanced by learned Sessions Judge.

I do not find any merit in the application and it is accordingly dismissed.