Susanta Naskar Vs. the State and anr.

Susanta Naskar vs The State and anr.

Disposition Petition dismissed Court Kolkata Decided Apr 26, 2010

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https://sooperkanoon.com/case/902912

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Citation: sooperkanoon.com/902912
Court: Kolkata High Court
Judge: Ashim Kumar Roy, J.
Decided On: Apr 26, 2010
Case Number: C.R.R. No. 3157 of 2008
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MINING Direction to State Government to consider all applications afresh in light of interpretation of Section 11 of the Act and Rules 35, 59 and 60 of MC Rules Main issue : Whether the State Government's recommendation dated 06.12.2004 and the proceedings of the Chief Minister are contrary to the provisions of...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Code of Criminal Procedure (CrPC) - Sections 125 and 397(3)

Parties & Advocates

Appellant / Petitioner

Susanta Naskar

Advocate Joy Sengupta and; Lakshmi Nath Bhattacharya, Advs.

Respondent

The State and anr.

Advocate Suranjan Mondal, Adv. for O.P. No. 2

Legal References

Acts: Code of Criminal Procedure (CrPC) - Sections 125 and 397(3)

Excerpt

.....dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a..........was examined at length but nothing has been brought out to shatter his credibility. it may also be noted that according to the husband/petitioner, the residential house in question belonging to his as also the spectacle shop.5. no doubt those said facts are within the special knowledge of the husband/petitioner, but nothing has been brought on records to sustain such contentions. even if it is proved that the husband has no income, still as the law uniformly held by the several high court as well as by the hon'ble apex court, the actual income of the husband is no consideration to decide the question of maintenance to be paid to the wife and it is the capacity of the husband to earn would be the right consideration. in this case, the wife/opposite party no. 2 has able to prove that she was driven out from her matrimonial home by the husband on her failure to fulfill the demand of dowry to be brought from her parents. there is no doubt that the wife has also been able to prove the case of negligence by the husband to maintain her as well as the husband has the capacity to maintain herself. in such view of the matter, the order impugned sustained in first revision, does not deserve to be interfered with. this criminal revision has no merit and accordingly stands dismissed. interim order, if any, stands vacated.however, i think ends of justice will be sub-served if the quantum of maintenance be reduced to some extent.accordingly, it is directed that the amount of maintenance granted by the court below and affirmed by the revisional court be reduced to a sum of rs. 4,000/- per month. the maintenance for this month must be sent to her within a week from this date and thereafter by 7th of each succeeding month and if there is any arrear, that must be liquidated in ten monthly equal instalments and be paid along with the current maintenance.i make it clear that if there is any default in making the payment of maintenance, the trial court shall have the liberty to.....

Full Judgment

Ashim Kumar Roy, J.

1. Let the Power filed today in Court on behalf of the petitioner by Mr. Lakshmi Nath Bhattacharya, the learned advocate with the endorsement 'No Objection' be kept on record.

A sum of Rs. 5,000/- was awarded in favour of the opposite party No. 2/wife in connection with a proceeding under Section 125 of the Code of Criminal Procedure. Against the said order, the petitioner/husband preferred a criminal

revision before the Sessions Court and having lost there has moved this criminal revision.

2. Heard the learned Counsel appearing for the respective parties. Perused the impugned order and the other materials on record.

3. Admittedly, this is a second revision. In view of the specific statutory bar contained in Section 397(3) of the Code of Criminal Procedure, the entertainment of the second revision at the instance of the self-same party is prohibited unless it is found that the order impugned is manifestly illegal and brings out a situation which is completely an abuse of the process of the Court.

4. This is a case where the marriage between the parties has not been disputed. However, it is the claim of the husband/petitioner that he is unemployed and was maintained by his father. On the other hand, it was the case of the wife/opposite party No. 2 that the petitioner is the owner of a Spectacle Shop 'Nabadristi' and he used to earn Rs. 8,000/- per month. In support of such contention, the wife/opposite party No. 2 examined one person, who claimed that the petitioner/husband is the owner of the said shop and in one occasion, he purchased a pair of spectacle from that shop. The said witness although was examined at length but nothing has been brought out to shatter his credibility. It may also be noted that according to the husband/petitioner, the residential house in question belonging to his as also the spectacle shop.

5. No doubt those said facts are within the special knowledge of the husband/petitioner, but nothing has been brought on records to sustain such contentions. Even if it is proved that the husband has no income, still as the law uniformly held by the several High Court as well as by the Hon'ble Apex Court, the actual income of the husband is no consideration to decide the question of maintenance to be paid to the wife and it is the capacity of the husband to earn would be the right consideration. In this case, the wife/opposite party No. 2 has able to prove that she was driven out from her matrimonial home by the husband on her failure to fulfill the demand of dowry to be brought from her parents. There is no doubt that the wife has also been able to prove the case of negligence by the husband to maintain her as well as the husband has the capacity to maintain herself. In such view of the matter, the order impugned sustained in first revision, does not deserve to be interfered with. This criminal revision has no merit and accordingly stands dismissed. Interim order, if any, stands vacated.

However, I think ends of justice will be sub-served if the quantum of maintenance be reduced to some extent.

Accordingly, it is directed that the amount of maintenance granted by the Court below and affirmed by the revisional Court be reduced to a sum of Rs. 4,000/- per month. The maintenance for this month must be sent to her within a week from this date and thereafter by 7th of each succeeding month and if there is any arrear, that must be liquidated in ten monthly equal instalments and be paid along with the current maintenance.

I make it clear that if there is any default in making the payment of maintenance, the Trial Court shall have the liberty to proceed against the petitioner for enforcement of the order of maintenance and recovery of the same without any further reference to this Court.

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.

Same Court & Year Kolkata · 2010 Same Parties Susanta Naskar vs The State and anr. Same Subject Criminal Same Judge Ashim Kumar Roy, J. Acts & Sections Code of Criminal Procedure (CrPC) - Sections 125 and 397(3)

Criminal