Sanjoy BaruA. Vs. Sarmistha BaruA.

Sanjoy BaruA. vs Sarmistha BaruA.

Type Court Judgment Court Kolkata Appellate Decided Feb 28, 2011

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https://sooperkanoon.com/case/911621

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Citation: sooperkanoon.com/911621
Court: Kolkata Appellate High Court
Judge: Prasenjit Mandal, J.
Decided On: Feb 28, 2011
Case Number: C.O. No. 3383 of 2010
Subject: Land Acquisition

Case Summary

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

[B.H. MARLAPALLE; R.C. CHAVAN; ROSHAN DALVI, JJ.] Code Of Criminal Procedure (Cr.P.C) - Section 102; Indian Penal Code (IPC) - Sections 465, 468, 471, 420, 120 -- Power of police officer to seize certain property - The movable property being a bank account which a Police Officer is entitled to seize during investiga...

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Sanjoy BaruA.

Advocate Mr. Amitava Mukherjee;, Miss. Munmun Dubey, Advs

Respondent

Sarmistha BaruA.

Excerpt

.....case, the division bench allowed the petition upon noticing four essential requirements of section 102 breached by the investigating officer. the bank account was a sequel to the discovery of the commission of the offence. in the case of rajamani vs. inspector of police, salem, 2003 criminal law journal 2902, the bank account of a third party was sought to be frozen. in the case of swaran sabharwal vs. commissioner of police, 1988 criminal law journal 241, which preceded the the case of tapas d. neogy (supra), the question relating to whether the bank account was property was inter alia considered which has later been settled in the case of tapas d. neogy (supra). sub- section (3) though requires the investigating officer to report the seizure to the magistrate does not enjoin him to inform, intimate or report the fact to any accused or any other person whose bank account is frozen or whose property is seized. the case related to freezing of account in swiss bank under a letter rogatory. the court further distinguished the aspect of attachment of money of the accused and freezing of the accounts during investigation. it is, therefore, clear that like any other property a bank account is freezable. freezing the account is an act in investigation. section 102 of the cr.p.c. does not require issuance of notice to a person before or simultaneously with the action of attaching (his) bank account. 1. challenge is to the order no.33 dated august 19, 2010 passed by the learned additional district judge, second court, barasat in matrimonial suit no.113 of 2008 thereby allowing an application under section 36 of the special marriage act granting alimony at the rate of rs.8,000/- per month for the wife and the minor son, subject adjustment of the amount paid in a proceeding under section 125 of the cr.p.c., effective from the date of filing of the application on november 13, 2006.2. the husband/petitioner herein instituted a suit being matrimonial suit no.113 of 2008 before the learned district judge, north 24 parganas under section 27 of the special marriage act. the wife/opposite party entered appearance and she is contesting the said suit. during pendency of the suit, she filed an application for alimony on november 13, 2006. that application for alimony was allowed by the impugned order granting alimony at the rate of rs.8,000/- per month for the wife and the son effective from the date of filing of the application adjustable to the amount being paid in the proceeding under section 125 of the cr.p.c. being aggrieved by that order, this application has been preferred by the husband.3. now, the question is whether the impugned order should be sustained.4. upon hearing the learned counsel for the petitioner and on going through the materials on record, i find that admittedly the parties were married under special marriage act and one child was born out of the wedlock. admittedly, the wife and the child have been residing in the house of the husband. the husband is residing in a rented flat under the compelling circumstances. the husband has contended that because of such a situation, he has to pay rent at the rate of rs.3,500/- per month for his tenanted premises. the impugned order was passed on august 19, 2010 but effect has been given from november 13, 2006. the husband is a school teacher. the contention of the husband is that in 2006, his net salary was to.....

Full Judgment

1. Challenge is to the order no.33 dated August 19, 2010 passed by the learned Additional District judge, Second Court, Barasat in Matrimonial Suit No.113 of 2008 thereby allowing an application under Section 36 of the Special Marriage Act granting alimony at the rate of Rs.8,000/- per month for the wife and the minor son, subject adjustment of the amount paid in a proceeding under Section 125 of the Cr.P.C., effective from the date of filing of the application on November 13, 2006.

2. The husband/petitioner herein instituted a suit being Matrimonial Suit No.113 of 2008 before the learned District Judge, North 24 Parganas under Section 27 of the Special Marriage Act. The wife/opposite party entered appearance and she is contesting the said suit. During pendency of the suit, she filed an application for alimony on November 13, 2006. That application for alimony was allowed by the impugned order granting alimony at the rate of Rs.8,000/- per month for the wife and the son effective from the date of filing of the application adjustable to the amount being paid in the proceeding under Section 125 of the Cr.P.C. Being aggrieved by that order, this application has been preferred by the husband.

3. Now, the question is whether the impugned order should be sustained.

4. Upon hearing the learned counsel for the petitioner and on going through the materials on record, I find that admittedly the parties were married under Special Marriage Act and one child was born out of the wedlock. Admittedly, the wife and the child have been residing in the house of the husband. The husband is residing in a rented flat under the compelling circumstances. The husband has contended that because of such a situation, he has to pay rent at the rate of Rs.3,500/- per month for his tenanted premises. The impugned order was passed on August 19, 2010 but effect has been given from November 13, 2006. The husband is a school teacher. The contention of the husband is that in 2006, his net salary was to the extent of Rs.12,411/- after deductions under different compulsory heads. Out of such money, the husband is paying Rs.7,000/- per month for the maintenance of the wife and the son. He is also paying monthly instalments of the loan taken by him for the construction of the house, at the rate of Rs.4,565/- per month. So, if the amount is paid at the enhanced rate, he will be left with nominal money for his own survival. He has to maintain other liabilities also. So, he prays for modification of the impugned order.

5. The wife is not coming to raise any dispute with regard to the contention of the husband. The husband has filed a number of salary certificates starting from the month of September, 2006 onwards showing under net salary from his service as a school teacher around Rs.12,000/- per month, Rs.13,000/- and odd per months, thereafter Rs.14,000/- and odd per month onwards and lastly the salary was increased to the extent of Rs.22,000/- and odd net per month from June, 2009. There is no contrary evidence with regard to such contention.

6. This being the position, I have no other alternative but to accept the submission of the husband which is based on convincing salary certificates. There is no dispute that the husband has been paying maintenance at the rate of Rs.7,000/- per month to the wife and the son for their maintenance in a proceeding under Section 125 of the Cr.P.C. Therefore, if the amount is further enhanced effective from November 13, 2006, it will create hardship to the husband and he will not be able to manage himself with the meagre amount left after payment of the maintenance and alimony. It may be recorded herein that the learned Trial Judge did not record any evidence but he acted on the basis of the petition, its objection, affidavits and other annexures. From the papers filed, it cannot be decided that the husband had income from other sources in the year 2006, 2007 and so on.

7. This being the position, enhancement at the rate of Rs.8,000/- effective from November, 2006, I hold, is hardship and it becomes excessive for the husband to pay the same and then to get his livelihood with the balance amount. Under the circumstances, I am of the view that I have no other alternative but to alter the date of effect of the impugned order. Since it is not clear that when the salary of the husband has actually enhanced and from the papers filed by the husband, it appears that salary has been increased with effect from June, 2009 and it should not be proper to make any enhancement from the intermediate period (i.e. from the date of filing of the application to the date of passing the order). I am of the view that the impugned order should be effective from the date of passing of the impugned order, that is, with effect from August 19, 2010. The arrears of alimony must be paid within two months from date.

8. This application is disposed of in the manner indicated above.

9. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.

Same Court & Year Kolkata Appellate · 2011 Same Parties Sanjoy BaruA. vs Sarmistha BaruA. Same Subject Land Acquisition Same Judge Prasenjit Mandal, J.

Land Acquisition