Tarakanath Kar Vs. Lipika Kar [2008] INSC 831 (7 May 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 836 OF 2008 (Arising out of SLP (Crl.) No. 3857 of 2006)
Tarakanath Kar ..Appellant Versus Lipika Kar ..Respondent
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge
of the Calcutta High Court in CRR No.970 of 2000 dated 19.1.2005 and order
passed in the application for clarification or modification of the order dated
19.1.2005.
3. Background facts as projected by the appellant are as follows:
Appellant and one Chandana entered into a wedlock on 16.2.1993 and were
blessed with two sons. On 16.9.1995 respondent-Lipika filed a case no.320/95,
under Section 125 of the Code of Criminal Procedure, 1973 (in short `Code')
claiming to be wife of the appellant and prayed for maintenance. The said case
was filed in the Court of SDJM, West Bengal. On 9.7.1997, the said case was
transferred to the Court of SDJM Suri, by order of learned CJM at Birbhum.
On 13.8.1997 Chandana appeared before the SDJM, Suri and filed application
for being impleaded in the proceedings. On 14.1.1998 learned SDJM passed an
ex-parte order of 2 maintenance in favour of the Lipika granting her
maintenance @ Rs.400/- p.m. On 27.8.1999 Criminal Revision case No.308/99 was
filed by the appellant against Lipika's misc.
execution case no.413/1998 arising out of ex-parte order referred to above.
The ex-parte order was set aside by the High Court and learned SDJM was
directed to decide the matter afresh. On 10.1.2000 learned SDJM dismissed the
application under Section 125 Cr.P.C. filed by Lipika holding that Chandana is
the legally married wife of Tarak and Lipika is not legally married of the
appellant. The revision petition filed by Lipika was allowed by the learned
Single Judge in CRR No.970 of 2000 and the order of learned SDJM was set aside.
There were certain directions given in the said petition, the correctness of
which was questioned by the appellant by filing an application for
modification/clarification. It was the specific stand of the appellant that the
directions in question could not have been given i.e. to initiate departmental
proceedings against the appellant.
3 The said application was dismissed by the subsequent order dated 5.7.2006
holding that in view of the provisions of Section 362 of the Code the
application was not maintainable.
4. Learned counsel for the appellant submitted that the directions as given
are clearly beyond the jurisdiction of the High Court while exercising
revisional jurisdiction under the Code. Learned counsel for the respondent
supported the order of the High Court stating that the directions have been given
keeping the ultimate objective of doing justice to the parties.
5. In the present appeal we are concerned with the legality of the direction
given by the learned Single Judge for initiation of the departmental
proceedings. The impugned direction read as follows:
"Before conclusion I think that it would be expedient for the interest
of justice to take appropriate action against the Opposite Party Taraknath Kar.
It appears from the materials on record that Opposite Party 4 Taraknath Kar is
a Group - D employee of Durgapur Court and he is a government servant. In T.S.
No.200/94 filed by him before learned Munsif, 1st Court, Durgapur the Opposite
Party stated that he is unmarried and there was no marriage between him and
defendant Lipika Kar.
He filed the suit for declaration that Lipika Kar is not his wife.
Subsequently, in CRR No.1742/95 filed by him and others praying for quashing of
criminal case being C.R. No.124/95 under Section 498A of IPC it was mentioned in paragraph 1 that he
is the husband of Opposite Party no.1 Lipika Kar and in paragraph 4(a) of the
said revisional application it was mentioned that on 17.3.94 his marriage with
Opposite Party No.1 was solemnized.
Before the learned SDJM, Suri in Misc. Case No.320/95 by producing certified
copy of order sheet of learned Judicial Magistrate, 4th Court, Bankura, this
Opposite Party Taraknath Kar introduced the story that he was married with
Chandana Kar on 16.2.93 and a misc. case No.153/97 of learned Judicial
Magistrate, 4th Court, Bankura Maintenance order under Section 125 of the Code
had been passed against him. It is, therefore, apparent from the papers and
documents that this Opposite Party has introduced papers before Court regarding
his marriage twice-once with Chandana Kar on 16.2.93 and another marriage with
Lipika Kar on 7.3.94.
Being an employee of Court and a government servant Opposite Party is not
entitled to marry twice without obtaining permission of Appointing Authority.
The conduct of the Opposite Party whether is unbecoming of a government
servant, or not, as being a Hindu he cannot marry twice under present law,
should be considered by the Appointing Authority and Disciplinary Authority.
Accordingly, learned District Judge, Burdwan being the Appointing Authority and
Disciplinary is directed to take necessary disciplinary action against Opposite
Party Taraknath Kar for his alleged marriage twice and if he finds that papers
and documents are satisfactory for placing him under suspension he shall 5 take
necessary steps in accordance with law for starting the disciplinary action and
for consideration whether Taraknath Kar would be placed under suspension.
Learned Registrar (Administration) is directed to send a copy of this order
to the learned District Judge, Burdwan for information and necessary action
accompanied by copy of revisional application of CRR No.1742/95, copy of plaint
of T.S. No.200/94 filed by the Opposite Party copy of application filed by
Lipika Kar and written show-cause and annexures filed by Taraknath Kar of Misc.
Case No.320/95 under Section 125 of the Code pending before learned SDJM, Suri
and also copy of exhibit G-Series filed before the learned SDJM, Suri in
connection with aforesaid Misc. Case for information and necessary action. The
learned Registrar (Administration) may also instruct the learned SDJM, Suri to
send copy/Xerox copy of application under Section 125 of the Code of Misc. Case
No.320/95 of this Court, copy of written show-cause and annexures filed by the
Opposite Party in connection with the said Misc. Case No.320/95 and copy of
exhibit G-Series of that case to him so that after collection all the papers
and documents he can send the said papers and documents to the learned District
Judge, Burdwan for taking necessary action in the matter."
6. In the subsequent order dated 5.7.2006 the High Court highlighted the
limited jurisdiction for rectification/modification under Section 362 of the
Code.
6
7. It appears that the High Court while dealing with the application under
Section 125 of the Code has essentially adjudicated that an offence punishable
under Section 494 of the Indian Penal Code, 1860 (in short the `IPC') is made
out. It needs to be noted that a Title Suit (TS 200/94) filed in the Durgapur
Civil Court is pending where prayer was made for declaration that the
respondent was not his wife. Whether there was a second marriage as contended
and whether Lipika was his wife as claimed by her or Chandana was the wife of
the appellant as claimed by him has yet to be decided. While exercising revisional
jurisdiction it was not open to the High Court to give direction for initiation
of departmental proceedings. Such a direction is beyond the scope of revisional
jurisdiction under the Code. Therefore, the High Court was clearly in error in
directing initiation of departmental proceedings; while dealing with an
application for revision in the matter relating to Section 125 of the Code. The
directions given in this regard both in the original order and the subsequent
order stand quashed.
7 8. The appeal is allowed to the aforesaid extent.
...............................
J.
(Dr. ARIJIT PASAYAT) ...............................J.
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