Allahabad High Court
Kamlesh Mishra vs State Of U.P. And Anr. on 19 August, 2011
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 50
Case :- CRIMINAL MISC. WRIT PETITION No. - 16028 of 2011
Petitioner :- Kamlesh Mishra
Respondent :- State Of U.P. And Anr.
Petitioner Counsel :- B.K. Pandey
Respondent Counsel :- Govt. Advocate,B.P. Singh,Raman Pandey
Hon'ble S.C. Agarwal,J.
Heard learned counsel for the parties.
This writ petition has been filed with a prayer to quash the order dated 30.7.2011, passed by Additional Session Judge, Court No.3, Varanasi, in Criminal Appeal No.92 of 2011 and the order dated 11.5.2011, passed by Additional Chief Judicial Magistrate-IX, Varanasi, in Case No.100 of 2011.
A case no.100 of 2011 (Anshu @ Bhawna Vs. Kamlesh and others), under Section 12 of the Protection Of Women From Domestic Violence Act, 2005, P.S. Cantt., District Varanasi, is pending in the Court of Additional Chief Judicial Magistrate-IX, Varanasi, wherein the petitioner is one of the opposite party and husband of respondent no.2. Learned Magistrate on 11.5.2011 heard the parties on quantam of interim maintenance and with consent of both the parties directed payment of Rs.8,000/- per month as maintenance allowance, payable by 11th of each successive month. It is also mentioned in the order dated 11.5.2011 that both the parties were present along with their counsel.
Subsequently, the petitioner challenged the order passed by the Magistrate by way of Criminal Appeal No.92 of 2011, which was dismissed by Additional Session Judge, Court No.3, Varanasi, on 30.7.2011.
Both the aforesaid orders are under challenge in this writ petition.
The case of petitioner before Sessions Court as well as before this Court was that the earlier counsel for the petitioner did not have any authority to give consent before the Magistrate for fixing maintenance allowance at the rate of Rs.8,000/- per month and, therefore, impugned orders be set aside.
Learned counsel for respondent no.2 invited attention of the Court towards the order passed by the Magistrate, wherein it has been specifically mentioned that both the parties were personally present in the Court along with their counsel.
A certified photostat copy of the order passed by the Magistrate (Annexure-2 to this writ petition) reveals that said order was passed on the order sheet of the case. The signature of petitioner is there on the order sheet, just on the right side of the signature of the Presiding Officer. It is thus established that order dated 11.5.2011 was passed by the Magistrate in presence of the petitioner and with the consent of the petitioner and his counsel. Now, it does not lie in the mouth of the petitioner to say that the order dated 11.5.2011 was passed without his consent or that his counsel gave consent without consulting him. The conduct of the petitioner is highly reprehensible and is condemned in the strongest possible words. After getting a consent order, passed by the Magistrate, the petitioner misused and abused the process of law by filing a criminal appeal before the Court of Sessions as well as by filing the writ petition in this Court. Instead of paying maintenance allowance as per the consent order passed by the Magistrate, he is trying every possible tactic to delay the proceedings.
In these circumstances, this Court is of the view that it is a fit case wherein exemplary costs must be imposed on the petitioner.
The writ petition is dismissed with costs of Rs.10,000/-. The costs shall be recovered by the Magistrate concerned and shall be paid to respondent no.2-Bhawna Mishra @ Anshu. If costs are not deposited within a month in the Court of Magistrate, learned Magistrate shall issue a citation to the Collector concerned for recovery of the same as arrears of land revenue.
A copy of this order be sent to the Magistrate concerned for compliance. The compliance report be submitted within two months from today.
Order Date :- 19.8.2011
NS
