Reserved
Court No. - 14
Case :- APPLICATION U/S 482 No. - 26810 of 2018 Applicant :- Santosh Kumar Sonkar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Jainendra Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Krishna Pratap Singh,J.
Heard Shri Jainendra Kumar Mishra, learned counsel for the applicant and learned Additional Government Advocate representing the State.
By means of this application under Section 482 Cr.P.C., the applicant has prayed for quashing of the order dated 15.11.2017 passed by the Additional Chief Metropolitan Magistrate-II, Kanpur Nagar in complaint case No. 3260 of 2011 (Smt. Pratibha Sonkar Vs. Santosh Kumar Sonkar) and the order dated 04.6.2018 passed by the Additional Sessions Judge, Court No. 7, Kanpur Nagar in Criminal Appeal No. 186 of 2017.
The brief facts of the case are that marriage of the complainant Smt. Pratibha Sonkar was solemnized with the applicant, Santosh Kumar Sonkar on 05.6.2006. After the marriage, husband and in-laws of the complainant started harassing her due to insufficient dowry and used to demand Santro Car as additional dowry and on account of non-fulfillment of the same, they have beaten the complainant and after snatching her Stridhan, they kicked her of the house. On 28.7.2009, accused came to the house of the complainant and demanded money for purchasing Santro Car and when complainant's father expressed his inability to give money, they beaten the complainant with kick and fists and on arrival of some persons of Mohalla, they left threatening. It is also mentioned in the complaint that she received injuries in the incident, which she got examined.
It was further alleged in the complaint that her husband is a Civil Engineer and deals in the business of property in addition to Rs. 20,000/- salary which he gets from J.P. Health Club, Jabalpur. The complainant further alleged that she has no source of income and that she is fully dependent upon her old aged parents.
In spite of several opportunities having been provided to the husband-applicant, when he did not file any objections, learned Magistrate vide order dated 15.11.2017 allowed the complaint ex-parte and directed the husband to pay a sum of Rs. 5,000/- to the complainant per month as maintenance. He also directed the husband to pay Rs. 50,000/- to the complainant as compensation within two months from the date of order.
Being aggrieved and dissatisfied with the order of learned Magistrate, husband filed an appeal before the Additional Sessions Judge, Court No. 7, Kanpur, who while setting aside the ex-parte order of learned Magistrate, directed the applicant- husband to pay a sum of Rs. 25,000/- to the complaint within one month and also pay Rs. 5,000/- per month. Learned Additional Sessions Judge also directed the Magistrate to decide complaint case No. 3260 of 2011 on merits and both the parties were directed to appear before the court concerned on 02.7.2018.
Instead of appearing before the Magistrate concerned pursuant to the order of learned Additional Sessions Judge, applicant-husband has rushed to this Court challenging both the orders.
Placing reliance upon a certificate issued by Shri Sanjeev Kumar Mishra, Advocate, High Court, Jabalpur to the effect that applicant is practicing under him and getting Rs. 5000/- per month as salary, learned counsel for the applicant-husband submits that learned Magistrate has erred in assessing the income of the applicant, but the fact is that he is only earning Rs. 5000/- (rupees five thousand) per month and that both the order suffer from illegality.
On the other hand learned Additional Government Advocate supported the orders of learned courts below.
Learned Additional Chief Judicial Magistrate, Court No. 2, Kanpur Nagar while passing the order dated 15.11.2017 has concluded that in spite of several opportunity no written submission has been filed by the husband to rebut the averments made in the complaint and in the absence of any rebuttal he has no option, but the accept the contents of the complaint in support whereof the complainant has also filed affidavit.
Learned Additional Sessions Judge, Kanpur Nagar while setting aside the ex-parte order of learned Magistrate and remanding the matter to the learned Magistrate for disposal of the case on its intrinsic merits, also directed the applicant- husband to pay a sum of Rs. 25,000/- to the complainant-wife and continues to pay Rs. 5000/- (rupees five thousand) on the first day of each month. Learned Additional Sessions Judge further directed the parties to appear before the Magistrate concerned on 02.7.2018 for disposal of the case on merits.
It appears that the applicant is avoiding judicial process by not appearing before the court concerned. He has neither appeared before the Magistrate nor filed written submission. Moreover, pursuant to the order of learned Sessions Judge directing the parties to appear before the Magistrate on 02.7.2018 applicant had chosen not to appear before the Magistrate and approached this Court.
Section 32(2) of Protection of Women from Domestic Violence Act, 2005 clearly provides that upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub- section (1) of Section 31 has been committed by the accused.
Moreover, the submissions made by the learned counsel for the applicant-husband relate to the disputed question of facts, which cannot be adjudicated by this Court in exercise of inherent jurisdiction.
I find no illegality or irregularity in the order dated 04.6.2018 passed by the learned Additional Sessions Judge, Court No. 7, Kanpur Nagar in Criminal Appeal No. 186 of 2017.
Accordingly, this application under Section 482 Cr.P.C. is rejected.
Order Date :- 06.09.2018 Ishrat