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GAHC010243592022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1212/2022
BITUPON GOGOI
S/O SRI DEBEN GOGOI
R/O BALIJAN VILLAGE, HOUSE NO. 237, LAKHI PATH TINIALI,
P.O. BALIJAN, P.S. DIGBOI, PIN CODE NO. 786171, DIST. TINSUKIA, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
THROUGH THE PP, ASSAM
2:SMT. SIMI BORGOHAIN
D/O SRI HITESHWAR
BITUPON GOGOI R/O HATIPATI GOHAIN GAON
P.O. GELEKEY P.S. SIVASAGAR ASSAM
Advocate for the Petitioner : MR A V SINGH
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
01.12.2022 Heard Mr. A.V. Singh, learned counsel for the petitioner and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent State of Assam.
2. The instant criminal petition under Section 482 read with Sections 397/401, Code of Criminal Procedure, 1973 [CrPC] has been preferred by the petitioner against an order dated 02.09.2022 passed by the Court of learned Additional Chief Judicial Magistrate, Sivasagar ['the trial court', for short'], whereby, the learned trial court had issued Non Bailable Warrant Page No.# 2/4 of Arrest [NBWA] against the petitioner in connection with Misc. Case no. 18/2019.
3. Considering the nature of relief sought for in the instant criminal petition and as sought for by the learned counsel for the parties, the petition is taken up for disposal at the motion stage itself.
4. The brief facts leading to the institution of the instant criminal petition can be stated as under :-
4.1. The marriage between the petitioner and the respondent no. 2 was solemnized on 20.04.2018 as per Hindu rites and rituals. After solemnization of the marriage, the petitioner and the respondent no. 2 started living together in the matrimonial home. In the subsequent period, differences and disputes started cropping up regularly between the petitioner and the respondent no. 2. As a result, the respondent no. 2 had left her matrimonial home in September, 2018.
4.2. The respondent no. 2 thereafter, filed an application under Section 125, CrPC before the learned trial court against the petitioner seeking maintenance. The said application was registered and numbered as Misc. Case no. 18/2019. After completion of the proceedings in Misc. Case no. 18/2019, the learned trial court by its judgment and order dated 06.09.2019, allowed the application under Section 125, CrPC by directing the petitioner to pay monthly maintenance @ Rs. 20,000/- per month to the respondent no. 2 from the date of filing of the application.
4.3. The judgment and order dated 06.09.2019 passed by the learned trial court in Misc. Case no. 18/2019 came to be challenged by the petitioner by preferring a criminal revision, Criminal Revision no. 24[4]/2019 before the Court of learned Sessions Judge, Sivasagar. The Criminal Revision no. 24[4]/2019 was partly allowed by the learned Sessions Judge by order dated 20.03.2021. By the order dated 20.03.2021, the quantum of monthly maintenance payable to the petitioner stood modified to Rs. 8,000/- per month from Rs. 20,000/- per month from the date of the petition.
Page No.# 3/4 4.4. After the order dated 20.03.2021, the proceedings of Misc. Case no. 18/2019 continued before the learned trial court. The learned trial court in its order dated 02.07.2022, had observed that till that date, the total amount of maintenance due from the end of the petitioner was Rs. 2,94,000/-. As the petitioner was found absent in the proceedings of Misc. Case no. 18/2019 on the subsequent dates, though the petitioner's father appeared before the learned trial court, the learned trial court on 02.09.2022 finding that a substantial part of the total maintenance allowance remained payable by the petitioner, issued NBWA against the petitioner.
4.5. On the subsequent dates of Misc. Case no. 18/2019, that is, on 05.09.2022, 06.10.2022 & 03.11.2022 also, the petitioner did not appear before the learned trial court and the learned trial court found that there was no execution of the NBWA issued against the petitioner.
5. Mr. Singh, learned counsel for the petitioner has submitted that on 07.11.2022, the father of the petitioner appeared before the learned trial court and deposited an amount of Rs. 1,08,000/- towards part payment of the total outstanding maintenance amount. It is submitted by him that during the period from 02.07.2022 to 07.11.2022, the petitioner was suffering from different ailments including mental depression. The petitioner is currently unemployed. Mr. Singh has submitted that the petitioner has undertaken to appear and to take part in the further proceedings of Misc. Case no. 18/2019. Mr. Singh has further submitted that in view of issuance of NBWA, the petitioner has the apprehension that in the event of his appearance before the learned trial court, there is a possibility of curtailment of his liberty by putting into custody, and in such situation, he will be not in a position to make payment of the balance of the outstanding maintenance amount.
6. Mr. Goswami, learned Additional Public Prosecutor has submitted that since the order in respect of the monthly maintenance allowance has attained finality, the petitioner is bound to abide by the order of maintenance and the only way to satisfy the same is by making deposit of the balance of the maintenance allowance before the learned trial court as per the Page No.# 4/4 order dated 07.11.2022.
7. Having considered the entire fact situation obtaining in the case in hand and the submissions of the learned counsel for the parties, this Court is of the considered view that the proceedings of Misc. Case no. 18/2019 instead of being protracted due to non- appearance of the petitioner, need expeditious conclusion. The appearance of the petitioner in the proceedings would facilitate expeditious conclusion of the trial. Since the order of maintenance @ Rs. 8,000/- per month is not under any challenge from the end of the petitioner, the petitioner is bound to abide by the order dated 02.09.2022 passed in Misc. Case no. 18/2019 by the learned trial court, which stood modified by and merged in the judgment and order of the revisional court dated 20.03.2021.
8. Having considered all the aspects in its entirety, this Court deems it fit, for ends of justice, that the petitioner should appear before the learned trial court on the next date of listing, that is, on 03.12.2022, without fail, and by making his appearance he should continue to participate in the further proceedings of Misc. Case no. 18/2019 in order to bring its expeditious conclusion. Accordingly, it is directed that the petitioner shall appear before the learned trial court on 03.12.2022 and till then, the NBWA issued against the petitioner shall remain in abeyance. In the event the petitioner appears before the learned trial court on 03.12.2022, the petitioner may prefer an application before the learned trial court praying for allowing him to go on regular bail. It is further observed that if any such application is preferred by the petitioner before the learned trial court, the learned trial court shall consider the same on its own merits and in accordance with law. While considering such application, the learned trial court may also consider the aspect regarding expeditious conclusion of the proceedings of Misc. Case no. 18/2019.
9. This order disposes of the instant criminal petition.
JUDGE Comparing Assistant