Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 6581 of 2009 Petitioner :- Sunil Dutt Sharma Respondent :- State Of U.P. & Another Counsel for Petitioner :- S.S. Chauhan Counsel for Respondent :- Govt. Advocate,Akhilesh Srivastava,Diwakar Tiwari
Hon'ble Siddharth,J.
Criminal Misc. Recall Application No.15 of 2018
This is an application to recall the order dated 10.7.2018, by which the petition was dismissed for want of prosecution. The reason for non- appearance has been stated in the affidavit filed in support of the restoration application.
Cause shown is sufficient to recall the order dated 10.7.2018. Restoration Application is allowed.
Order dated 10.7.2018 dismissing the petition for want of prosecution is recalled.
Petition is restored to its original number.
Order on Petition
Heard Shri S.S. Chauhan, learned counsel for the petitioner, learned A.G.A. for the State-respondent and Shri Akhilesh Srivastava, learned counsel for the respondent No.2.
This petition has been filed by the petitioner under Article 226 of the Constitution of India with a prayer for quashing the impugned order dated 29.9.2008 passed by the Judicial Magistrate, Court No.1, Aligarh and order dated 21.2.2009 passed by the Additional Sessions Judge, Court No.1, Aligarh.
Brief facts of the case are that an application under section 125 Cr.P.C was moved by respondent No.2, Smt. Madhu Kumari Sharma in the Court of Chief Judicial Magistrate, Aligarh. This application was dismissed by the Magistrate, Aligarh. Thereafter respondent No.2, Smt. Madhu Kumari Sharma assailed the order of Magistrate before the Sessions Judge, Aligarh by way of Criminal Revision No.235 of of 2007. The aforesaid criminal revision was heard by the Additional Sessions Judge, Court No.8, Aligarh and allowed setting aside the impugned order dated 18.4.2007 passed by the Magistrate and remitted the matter before the Magistrate for rehearing the case, according to the directions given in the judgement. In compliance of the judgement of Additional Sessions Judge, the Magistrate again heard the application filed under section 125 Cr.P.C and after hearing both the parties allowed the same vide judgment dated 29.9.2008 directing the opposite party No.2 to pay Rs. 2000/- per month to applicant-opposite party No.2, Smt Madhu Kumari Sharma, Rs.1000/- per month to the minor son, Sumit and Rs.1000/- per month to the minor daughter, Palavi, since the date of application dated 29.9.2008. The aforesaid judgement of Judicial Magistrate, Court No.1, Aligarh was again assailed by the petitioner before the Sessions Judge in criminal revision No.535 of 2008. The aforesaid criminal revision was heard by the Additional Sessions Judge, Aligarh. Vide judgement and order dated 21.2.2009, the Additional Sessions Judge has dismissed the revision and confirmed the order passed by the Judicial Magistrate, Aligarh.
Learned counsel for the petitioner has submitted that the revisional court has failed to consider the statement of Alok Dutt Sharma, son of the petitioner and respondent No.2 wherein he supported the case of the petitioner and stated that the respondent No.2 is living apart from the petitioner without any reason and she has illicit relationship with her uncle and other men. He has further argued that the petitioner has expressed his willingness to keep respondent No.2 and his children with him, but respondent No.2 has refused the offer and therefore, the magistrate should not have awarded the maintenance in favour of respondent No.2.
The aforesaid witness has been cross-examined wherein he could not prove his stand. He has not been found to be a reliable witness and his testimony is not credible. He was found residing with his father and therefore, gave evidence in his favour.
The magistrate has recorded the finding that the petitioner has not been able to prove that the respondent No.2 is living apart from him without any reason. Finding has also been recorded that the respondent No.2 is not in a position to maintain herself and her children. These findings of fact recorded by the courts below cannot be interfered under Article 226 of the Constitution of India. Consequently, this writ petition fails and is, accordingly, dismissed.
Order Date :- 25.9.2018 T. Sinha