C-482 Gullu.docx

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ~~~~~~~ CRIMINAL MISC. APPLICATION NO.

OF 2011

(Under Section 482 of the Code of Criminal Procedure) [[District –Tehri Garhwal]]

Dhan Singh Negi, S/o Late Sri Ram Chand Singh Negi, R/o Village Saundkoti, Patti Makhlogi, District Tehri Garhwal.......………………………….…….....Applicant.

Versus.

1. State of Uttarakhand. 2. Smt. Sarojani W/o Sri Dhan Singh Negi, R/o Village Saundkoti, Patti Makhlogi, District Tehri Garhwal…...........……...........…………..Opposite Parties. ~~~~~~~

To, The Hon'ble the Chief Justice and his other companion Judges of the aforesaid Hon’ble Court. The humble application of the above named applicant most respectfully showeth as under:1. That the full facts and circumstances of the case have been disclosed in the accompanying affidavit, which is being filed in support of this application. 2. That under the facts and circumstances of the present case stated in the accompanying affidavit, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to allow the above mentioned criminal misc.

application and set aside the impugned Judgement and order dated 11.05.2011 passed by C.J.(S.D.)/J.M. Ist Class Tehri Garhwal in case no. 18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit) . It is further prayed that during pendency of present criminal misc. application the effect and operation of the Judgement and order dated 11.05.2011 passed by C.J.(S.D.)/J.M. Ist Class Tehri Garhwal in case no. 18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit) be stayed; otherwise the applicant shall suffer an irreparable loss and injury, which cannot be compensated by any other means.

PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow the instant application and set aside the impugned Judgement and order dated 11.05.2011 passed by C.J.(S.D.)/J.M. Ist Class Tehri Garhwal in case no. 18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit); and/or pass any other or further orders, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

It is further prayed that this Hon’ble Court may graciously be pleased to stay the operation and effect of Judgement

and

order

dated

11.05.2011

passed

by

C.J.(S.D.)/J.M.

Ist

Class

Tehri

Garhwal

in

case

no.

18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit); during pendency of present Criminal Misc. Application before this Hon’ble Court; and/or pass any other or further orders, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. Date……./12/2011

(Ramji Srivastava) Advocate Counsel for the Applicant

IN THE HIGH COURT OF UTTTAKHAND AT NAINITAL ~~~~~~~

AFFIDAVIT IN CRIMINAL MISC. APPLICATION NO.

OF 2011

(Under Section 482 of the Code of Criminal Procedure) [[District –Tehri Garhwal]] Bablu s/o Late Shri Ratan Chaudhary r/o Gram Sevla Kala, Mazra, District Dehra Dun..………………...............................................Applicant. Versus. Smt. Pooja w/o Shri Bablu r/o Gram Badamwala, P.S. Vikasnagar, Dist. Dehra Dun State of Uttarakhand ......……....….....................Opposite Parties.

Affidavit ofBablu, Aged about 29 Years,Late Shri Ratan Chaudhary r/o Gram Sevla Kala, Mazra, District Dehra Dun (Deponent) I, the deponent above named do hereby solemnly affirm and state on oath as under. 1.

That the deponent is the sole Applicant in the above mentioned Criminal Misc. Application and as such he is fully acquainted with the facts of this case deposed to below.

2.

That this is the Criminal Misc. application being filed by the applicant, the applicant has not filed any other petition or application on the same cause of action before this Hon’ble Court.

3.

That the appellant and the opposite party no.1 got married on 0101-2008 according to Hindu Rites and Customs at Dehra Dun and an issue was born out of the marriage on 15-11-2008.

4.

That soon after the marriage O.P. No. 1 started forcing the appellant to sell out his house and to stay with O.P. No. 1 alongwith her parents but after the refusal of the appellant O.P.

No.1 started to create mental pressure on the appellant by entering into heated arguments with him.

5.

That the appellant by every possible way tried to explain the O.P. No. 1 that it is not possible for him to shift at O.P. No. 1 parental house as his only source of income is from a Parchoon Shop which is close to his house and in case if he shifted with O.P. No. 1 parents he cannot fulfill the financial needs of himself and his family as he has no other sources of income. Also the demand of the O.P. No. 1 that appellant should sell his house was totally unreasonable and cannot be fulfilled at any cost. It is also pertinent to mention here that O.P. No. 1 started threatening appellant that in case her demands are not met out she will implicate the appellant in false and frivolous criminal cases and the appellant had to spent the rest of his life in prison.

6.

That marriage of brother of O.P. No. 1 Manoj Kumar was fixed for 07.05.2009 and O.P. No. 1 asked the appellant to contribute a hefty sum of Rs. 50,000/- at her brother’s marriage. Appellant, because of his love and affection towards O.P. No. 1 sell out his agricultural land and give a loan of Rs. 50,000/- to the parents of O.P. No.1, which was promised by them to return within six months. However even after a long span of two and a half year no money was returned by parents of O.P. No. 1. Also the appellant because of his love and affection toward the O.P. No. 1 opened an R.D. BhartiyaDakBima of Rs. 500/- monthly having account no. 306128 and also started giving her Rs. 50/- daily for her day to day expenses and further Rs. 2000/- for monthly house expenses. However O.P. no. 1 was not happy and still wanted appellant to stay with her parents.

7.

That on dated 02.10.2009 O.P. No. 1 without informing appellant, O.P. No. 1 went to her parental house and even after repeated request of appellant never came back to his house.

8.

That Opposite Party No. 1 filed a suit against the appellant under Domestic Violence Act, 2005 U/s 12 for

for demand of Dowary

and for Domestic violence 9.

That Opposite Party No. 1 filed a suit no. 494/2010 under sec. 9 of Hindu Marriage Act, 1955, but Opposite party No. 1 even after receiving notices does not come to stay alongwith the appellant.

10.

That the Learned Judicial Magistrate I, Vikas Nagar considering the Minimum Daily Wages Labor as Rs. 150 to 200 and considering income of the appellant as similar to that of Daily Wage presumed the monthly income of Appellant as Rs. 6000/allowed monthly maintenance Rs. 2,500/- to the Opposite Party No. 1, in suit no. 1044 of 2010.Copy of the judgement and order dated 25.06.2010 passed by learned magistrate in misc. case no. 65/05 is being filed herewith and marked as Annexure No. 1 to this affidavit.

11.

That against the said order passed by Learned Judicial Magistrate I, Vikas Nagar was challenged by appellant before District and Session Judge, Dehradun vide appeal no. 58 of 2011. However the Learned Judge also without consider the facts and circumstances of the case upheld the impugned order passed by Learned Judicial Magistrate I, Vikas Nagar.Copy of the judgement and order dated 18.10.2011 passed by Learned District and Session Judge 58/2011 is being filed herewith and marked as Annexure No. 2 to this affidavit.

12. 13. 14.

That the problem started when the applicant came to India and started employment as a cook in different hotels as such the income of applicant was heavily reduced therefore the applicant was not been able to give such a huge amount as was being sent from the foreign.

15.

That it is pertinent to bring on record that the opposite party no.2 with her sons used to live luxurious life therefore the opposite party no.2 become annoyed with the applicant when he return back to India in the year of 2006 and engaged himself as a cook in different hotels as his income in heavily reduced.

16.

That thereafter the due to the said differences the opposite party no.2 with the help of her sons also thrownout the applicant from his own house and therefore the applicant was compelled to reside other place in tenanted accommodation and any how he is maintaining himself not even this the opposite party no.2 also debarred the applicant from his agricultural property with he help of her sons and doing agriculture in the aforesaid agriculture land and getting income from there.

17.

That due to the strained relation between them the opposite party no.2 and her sons filed an application under section 125 Cr.P.C. before Chief Judicial Magistrate Tehri Garhwal, the said case was registered as misc. case no. 65/05 with frivolous allegation against the applicant. The said application was dully contested by the applicant and after the evidence adduced by the party the learned CJM vide its judgement and order dated 25.06.2010 rejected the application in respect of opposite party no.2 however the learned magistrate granted maintenance to two sons namely Rajveer Singh and Jaiveer Singh @ Rs. 2000/- per month to each of them (total Rs.4000/ per month). Copy of the judgement and order dated 25.06.2010 passed by learned magistrate in misc. case no. 65/05 is being filed herewith and marked as Annexure No. 1 to this affidavit.

18.

That the learned magistrate while passing the order clearly recorded its finding that the applicant never neglected her, the learned magistrate also recorded its finding that the opposite party no.2 is getting rent from house and also getting income from that agricultural land therefore she is not entitled f or maintenance from the applicant.

19.

That it is pertinent to mention here that during the pendency of aforesaid misc. case under section 125 of Cr.P.C. the opposite party no.2 filed another application

dated 02.02.2008 before

same court i.e. CJM Tehri Garhwal under the provision of section 12 of Protection of women from Domestic Violence Act 2005 claiming maintenance @ Rs. 5000/- month from the applicant. It is further stated here that in the said application there is no averment made with regards to the income of the applicant, she also admitted in her application that the applicant is now residing in India. Copy of the application under section 12 of Protection of Women form Domestic Violence Act 2005 is being filed herewith and marked as Annexure No.2 to this affidavit. 20.

That the applicant has put his appearance before the court and he is also filed his written statement/objection denying the allegation made in the plaint the applicant clearly stated in paragraph no. 9 to 13 of his objection /written statement, that the applicant has grabbed his house contesting 11 rooms with other amenities and she also grabbed agricultural land and from the house she is getting rent from the different tenant and she is also having income from agricultural land, it was also stated in written statement/objection the opposite party no.2 with the help of her sons thrownout

the applicant from his own house and he is

compel to live in a different accommodation. Copy of the written statement/objection filed by the applicant is being filed herewith and marked as Annexure No.3 to this affidavit.

21.

That during the course of proceeding the opposite party no.2 adduced her evidence as AW1 and she was also cross examine by the counsel of the applicant. Copy of the examination of the opposite party no.2 as AW1 is being filed herewith and marked as Annexure No.4 to this affidavit.

22.

That it is also submitted here that since the applicant was engaged as a cook in the hotels situated at Goa therefore he was not able to attained each and every date of case therefore he

could not produced himself for examination in the aforesaid proceeding however the applicant filed the judgement and order passed by learned Judicial Magistrate dated 25.06.2010 in his evidence passed on an application under section 125 of Cr.P.C.

23.

That thereafter the learned Magistrate partly allowed the application vide its judgement and order dated 11.05.2011 whereby the learned Magistrate granted maintenance Rs. 3000/month and the learned Magistrate has also restrain the applicant to create any third party interest in the house where the opposite party no.2 reside. Copy of the impugned judgement and order dated 11.05.2011 passed by Civil Judge (Senior Division)/Judicial Magistrate Ist Class Tehri Garhwal in case no. 18/11 under section 12 of Protection of Women form Domestic Violence Act 2005 is being filed herewith and marked as Annexure No.5 to this affidavit.

24.

That it is submitted here that while passing the impugned order the learned court below has totally failed to records its finding with regards to income of the applicant and granted maintenance Rs. 3000/- month without any evidence. It is also stated here that admittedly the applicant is residing in a different place in tenanted accommodation from the opposite party no.2 since last several years therefore there is no question of Domestic Violence as such the application field by the opposite party no.2 under section 12 of Protection of Women form Domestic Violence Act 2005 was not maintainable and was liable to be dismissed, but learned court below have totally failed to consider the same and passed the impugned order which is illegal and deserves to be set aside.

25.

That the applicant is residing in different accommodation on rent due to cruel behavior of opposite party no.2 inspite of the fact he is having own house and he has to pay the rent @ of Rs. 1000/month where he is residing. It is also submitted here that the applicant is not having permanent job he is cook in parties and

having income of about Rs. 4000/- month which too is not permanently but the learned trial court without considering the same passed impugned order inspite of the fact that the opposite party no.2 is having sufficient means to maintain herself.

26.

That being aggrieved with the order passed by learned Magistrate dated 11.05.2011 the applicant preferred an appeal before Addl. District and Session Judge/FTC Tehri Garhwal as provided under section 29 of Protection of Women form Domestic Violence Act 2005 the aforesaid appeal was numbered as Crl. Appeal No. 19/2011 Dhan Singh Vs. State and another, inter alia on the ground mention therein the applicant is not reproducing the same for the sake of brevity however the same may be treated as part of this paragraph.

27.

That the applicant clearly taken the ground that there is mandatory provision in the act that before filing the application a report of protection officer should be called out but in the present case there is no such report therefore the application under section 12 of Protection of Women form Domestic Violence Act 2005 itself it was not maintainable therefore the learned Magistrate has committed a gross error of law.

28.

That aforesaid appeal was dully contested by the opposite party no.2 and the learned lower appellate court dismissed the appeal vide its order dated 20.08.2011 and affirmed the judgement and order dated 11.05.2011 passed by the learned magistrate. Copy of the judgement and order dated 20.08.2011 passed by learned lower appellate court in appeal no. 19/201 Dhan Singh Vs. State and another being filed herewith and marked as Annexure No.6 to this affidavit.

29.

That the learned lower appellate court has also committed same mistake and ispite of any material as well as evidence on record with regards to the income of the applicant affirmed the order passed by trial court.

30.

That it is also pertinent to mention here that it is clear from the material available in record that the opposite party no.2 is living in the house of applicant and she is also getting rent from there, apart from it the opposite party no.2 also having income from the agriculture land of the applicant while in other hand the applicant inspite

of

his

own

house

compel

to

live

in

tenanted

accommodation and he has also no permanent income but both the courts below have totally failed to consider the same and passed impugned order which is liable to be set aside. 31.

That under the facts and circumstances

of the present case

stated in the preceding paragraphs, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to allow the above mentioned criminal misc. application and set aside the impugned Judgement and order dated 11.05.2011 passed by C.J.(S.D.)/J.M. Ist Class Tehri Garhwal in case no. 18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit) . It is further prayed that during pendency of present criminal misc. application the effect and operation of the Judgement and order dated 11.05.2011 passed by C.J.(S.D.)/J.M. Ist Class Tehri Garhwal in case no. 18/11(Annexure No.5 of the affidavit) as well as judgement and order dated 20.08.2011 passed by learned Addl. District and Session Judge/FTC Tehri Garhwal in crl. Appeal no. 19/11 Dhan Singh Vs. State and another (Annexure no.6 of the affidavit) be stayed; otherwise the applicant shall suffer an irreparable loss and injury, which cannot be compensated by any other means.

I, the deponent above named, do hereby swear, affirm and verify that the contents of paragraph nos. 1, 2, 3, 4, 5, 6, 7, 8, 12, 14, 16(P), 17, 19, 22 and 23 of this

affidavit are true to my personal knowledge in this case; those the contents of paragraph nos. 9. 10, 11, 13, 15, 16(P), 18, 20 and 21 of this affidavit are based on perusal of records of this case; those the contents of paragraph nos…………..of this affidavit are based on legal advice in this case; which all I believe to be true and that no part of this affidavit is false and nothing material has been concealed. SO HELP ME GOD.

(DEPONENT)

I,

Surendra

Singh

Bisht,

Clerk

to

Mr.Ramji

Srivastava, Advocate, High Court of Uttarakhand at Nainital, do hereby declare that the person, making this affidavit and alleging himself to be deponent is known to me from the perusal of the papers produced before me in this case. (CLERK) Solemnly affirmed before me on this………….day of………December,2011 At about……….a.m./p.m. by the deponent who has been identified by the aforesaid clerk. I have satisfied myself by examining the deponent who has fully understood the contents of this affidavit, which have been read over and explained to him by me. (OATH COMMISSIONER)

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ~~~~~ INDEX IN CRIMINAL MISC. APPLICATION NO.

OF 2011

(Under Section 482 of the Code of Criminal Procedure) [[District –Tehri Garhwal]] Dhan Singh Negi…..……………...............................................Applicant. Versus. State of Uttarakhand & another......……......................Opposite Parties. ~~~~~~~~ ___________________________________________________________ S.N. PATICULARS PAGE NO. ___________________________________________________________ 1.

Index.

2.

Criminal Misc. Application

3.

Affidavit

4.

Annexure No.1: Copy of the judgement and order dated 25.06.2010.

5.

Annexure No.2: Copy of the application.

6.

Annexure No.3: Copy of the written statement/objection filed by the applicant.

7.

Annexure No.4: Copy of the examination of the opposite party no.2 as AW1.

8.

Annexure No.5: Copy of the impugned judgement and order dated 11.05.2011

9.

Annexure No.6: Copy of the judgement and

order dated 20.08.2011. 10.

Particulars of Counsels appeared before the lower court.

11.

Vakalatnama

_______________________________________________________ Date:

/ 12 /2011

(Ramji Srivastava) Advocate Counsel for the Applicant