Page No.# 1/9 vs Meghna Khemka And 11 Ors
2025 Latest Caselaw 5196 Gua

Gauhati High Court

Page No.# 1/9 vs Meghna Khemka And 11 Ors on 11 June, 2025

Author: S.K. Medhi

Bench: Manash Ranjan Pathak, Sanjay Kumar Medhi

                                                                   Page No.# 1/9

GAHC010089422025




                                                        2025:GAU-AS:7678-DB

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : I.A.(Crl.)/455/2025
                                     in
                          WP(Crl.)/27/2023 (D/O)


         ARVIND KUMAR KHEMKA
         S/O.- LATE RAJKUMAR KHEMKA, R/O.- INDUSTRIAL ESTATE, CHANDPUR,
         CHURAMPUR, VARANASI - 221106.



         VERSUS

         MEGHNA KHEMKA AND 11 ORS
         D/O- MAHABIR PRASAD BUKALSARIA, R/O- NEW MARKET, DIBRUGARH,
         PIN- 786001.

         2:THE STATE OF ASSAM
         THROUGH THE CHIEF SECRETARY
          GOVERNMENT OF ASSAM
          JANATA BHAWAN
          DISPUR
          GUWAHATI
          PIN -781006
         ASSAM

         3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
          DEPARTMENT OF HOME AFFAIRS
          JANATA BHAWAN
          DISPUR
          GUWAHATI - 781006.

         4:THE DISTRICT MAGISTRATE OF DIBRUGARH
          DISTRICT- DIBRUGARH
         ASSAM
                                                       Page No.# 2/9


5:THE SUPERINTENDENT OF POLICE
 DIBRUGARH
 DISTRICT- DIBRUGARH
ASSAM

6:THE OFFICER-IN-CHARGE
 DIBRUGARH POLICE STATION
 DISTRICT -DIBRUGARH
ASSAM

7:CHILD WELFARE COMMITTEE
 DIBRUGARH
 OFFICER OF THE DISTRICT CHILD PROTECTION OFFICER
 J. P. NAGAR
 DR. LILA GOGOI PATH
 DISTRICT- DIBRUGARH
ASSAM
 REP. BY ITS CHAIRPERSON.

8:GEETANJALI TIWARI
 D/O.- BHRIGU NATH TIWARI
 R/O.- GAYATRI TOWERS
 PLOT NO. 265A
 H. NO. 8-2-293/82/2/L/265A
 MLAS COLONY
 LOTUSPOND ROAD
 ROAD NO. 12
 BANJARA HILLS HYDERABAD
TELANGANA -500034.

9:S. I. SANGEETA KOCH
TRAFFIC BRANCH
 DIBRUGARH POLICE STATION
 DISTRICT -DIBRUGARH
ASSAM

10:S.I. SWAPNA BARUAH
 DIBRUGARH POLICE STATION
 DISTRICT- DIBRUGARH
ASSAM

11:GITIMALLICA GOGOI
 CHAIRPERSON CHILD WELFARE COMMITTEE
 DIBRUGARH OFFICER OF THE DISTRICT CHILD PROTECTION OFFICER
 J. P. NAGAR
 DR. LILA GOGOI PATH
 DISTRICT- DIBRUGARH
                                                                         Page No.# 3/9


              12:RUPA RANI KOUR
               MEMBER
               CHILD WELFARE COMMITTEE
               DIBRUGARH
               OFFICER OF THE DISTRICT CHILD PROTECTION OFFICER
               J. P. NAGAR
               DR. LILA GOGOI PATH
               DISTRICT- DIBRUGARH
              ASSA

Advocate for the Petitioner   : MR G ALAM, MR S R A NASER,S K SARFRAJ KARIM

Advocate for the Respondent : GA, ASSAM, MR. R DUBEY

BEFORE

HON'BLE MR. JUSTICE MANASH RANJAN PATHAK Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the Applicant : Shri A. Phukan

Date of hearing : 11.06.2025 Date of Judgment : 11.06.2025

Judgment & Order

(S.K. Medhi, J.) Heard Shri A. Phukan, learned counsel appearing on behalf of the petitioner /applicant.

2. The instant Interlocutory Application (IA) has been filed seeking recall / modification of the order dated 08.02.2024 passed by this Court in WP (Crl.) No. 27 of 2023. The applicant was Respondent No. 7 in the aforesaid writ petition.

Page No.# 4/9

3. By drawing the attention of this Court to the averments made in the application, the learned counsel has submitted that there are certain new developments which would require recall / modification of the order dated 08.02.2024. It has been submitted that the minor daughter of the parties is presently admitted in Mussoorie International School, where certain restrictions are there regarding telephonic access to the students. He has submitted that this Court in the aforesaid order dated 08.02.2024, had made certain observations regarding affording telephonic access of the minor daughter with the writ petitioner / opposite party.

4. As regards the aspect of maintainability of the present IA, the learned counsel has submitted that the present application is based on subsequent developments that have arisen only after the passing of the said order. Therefore, it has been argued that the IA would be maintainable.

5. The contentions advanced by the learned counsel have been carefully examined.

6. The law regarding the maintainability of any application seeking recall or modification of an order finally passed in a proceeding is well settled.

7. In the case of State of Uttar Pradesh Vs. Brahm Dutt Sharma & Anr. reported in AIR 1987 SC 943, the Hon'ble Supreme Court has made the following observation.

"10. The High Court's order is not sustainable for yet another reason.

Respondents' writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending Page No.# 5/9

before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was ag- grieved by the notice dated 29.1.86 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning."

8. In the recent case of Jaipur Vidyut Vitran Nigam Ltd, & Ors. Vs. Adani Power Rajasthan Ltd. &Anr. (2024 SCC OnLine SC 313), the following observations have been made by the Hon'ble Apex Court.

"25. We felt it necessary to examine the question about maintainability of

the present application as we are of the view that it was necessary to spell out the position of law as to when such post-disposal miscellaneous applications can be entertained after a matter is disposed of. This Court has become functus officio and does not retain jurisdiction to entertain an application after the appeal was disposed of by the judgment of a three-

Page No.# 6/9

Judge Bench of this Court on 31.08.2020 through a course beyond that specified in the statute. This is not an application for correcting any clerical or arithmetical error. Neither it is an application for extension of time. A post disposal application for modification and clarification of the order of disposal shall lie only in rare cases, where the order passed by this Court is executory in nature and the directions of the Court may become impossible to be implemented because of subsequent events or developments. The factual background of this Application does not fit into that description."

The said observations have been reiterated by the Hon'ble Supreme Court in the case of Ajay Kumar Jain Vs. The State of Uttar Pradesh & Anr. (2024 INSC

958).

9. The underlying principles which have been laid down qua the maintainability of an IA in a disposed of matter is on the principle that the Court becomes functus officio after disposal of the matter. Consequently, there is no jurisdiction for such a Court to entertain an application after such disposal.

10. As pointed out by the Hon'ble Supreme Court in the aforementioned decisions, if such an application is for correcting any clerical or arithmetic error or for extension of time, the matter may be treated as an exception. However, it has been reiterated that such exceptions are to be invoked sparingly and only in rare cases.

11. In the instant I.A., the prayer reads as follows:

"a. A writ in the nature of Habeas Corpus commanding upon the Page No.# 7/9

respondents particularly respondent nos. 2 to 6 to forthwith trace out, rescue and produce the body of the 11 years minor daughter of the petitioner;

b. A writ in the nature of Mandamus calling upon the respondent no. 6 to produce all records pertaining to this case before this Hon'ble Court so that the conscionable justice may be done upon perusal of the same;

c. Rule NISI in terms of the prayer above;

d. Pass such further order or order and / or direction or directions as your Lordships may deem fit and proper."

12. Juxtaposed, the operative part of the order dated 08.02.2024, reads as follows:

"6. However, on considering the prayer made in the I.A., this Court is of the opinion that telephonic access to the applicant - mother is required, taking into consideration the welfare of the minor child which is of paramount importance. In this regard, specific instructions have been sought for from the learned counsel and as per the same, the applicant - mother would be allowed to have telephonic access to the minor daughter twice a week namely, Tuesday and Friday between 06:00 PM to 07:00 PM. However, it is made clear that there may be slight modification in the dates or timings subject to the convenience of the parties.

7. On a specific query from this Court, Shri Dubey, learned counsel for the petitioner / applicant has submitted that the Page No.# 8/9

petitioner / applicant is aware of the telephone number of the respondent no. 7. However, in case there is any change in such telephone number, the same has to be intimated to the petitioner / applicant so that the telephonic access which is being allowed to the petitioner / applicant can be done without any hindrance.

8. We further make it clear that the present order pertains to only telephonic access and no order has been passed on the prayer for physical access.

9. The petitioner / applicant would however be at liberty to approach the appropriate forum with an appropriate petition in case of any grievance."

This Court while disposing of the aforesaid writ petition, had clearly made the observation that the writ petitioner would be at liberty to approach the appropriate forum in case of any grievance.

13. The case projected in the present IA is that the minor child in question has been admitted in the Mussoorie International School, which imposes restrictions on telephonic access to students. In this connection, the learned counsel has also placed before this Court a communication dated 09.06.2025 of the said school.

14. Though the aforesaid document is not required to be examined by this Court, even a cursory glance of the document would show that newly admitted students are not permitted to make phone calls for the first month following their admission. Even if it is construed that making phone calls would also encompass the aspect of receiving phone calls, it is not the opposite party which Page No.# 9/9

has expressed any grievance by approaching this Court. Furthermore, the school in question has not also expressed any grievance with the observations made by this Court.

15. At this stage, Shri Phukan, the learned counsel for the applicant, has submitted that the opposite party has filed a contempt petition alleging violation of the order in question.

16. It is needless to state that contempt jurisdiction is attracted only in the cases of wilful and conscious disobedience of the directions issued by this Court.

17. In view of the aforesaid discussion, this Court is of the considered opinion that the instant application is not maintainable and, accordingly, the same stands dismissed. It is however observed that the applicant would have the liberty to raise all such defence in the contempt petition stated to have been filed.

18. No order as to costs.

                          JUDGE                               JUDGE


Comparing Assistant