AKBAR ALL GAZI Vs. AMBIA KHATOON

JUDGEMENT

(1.) THIS Rule is at the instance of the second party-petitioner, Md. Akbar Ali Gazi, directed against an order of maintenance passed an 26. 6. 72 by Shri L, V. Saptarishi, sub-divisional Magistrate, Basirhat in case No. M 109 of 1972

(2.) SOME intriguing, sometimes even amazing, orders are brought to light in bourse of a proceeding purported to be under Section 488 Criminal Procedure code. The facts required for appreciating the points at issue are short and simple. An application, not having all the trappings of a petition under Section 488 Criminal Procedure Code, was filed on 6. 6. 72 before the learned Sub-divisional Magistrate, Basirhat by the first party-opposite party, Mt. Arabia Khatun, alleging neglect and refusal to maintain her as well as the factum of a second marriage on the part of the second party and containing an ultimate prayer that the learned Magistrate may be pleased to pass necessary orders. On this petition the learned Sub-divisional magistrate straightaway passed an order calling upon the O/c of the local thana to arrest the second party as "the man who has abandoned his wife" and to produce him in course of the day. When produced before the learned sub-divisional Magistrate on 8. 6. 72. the second party filed an application stating, inter alia, that he is quite innocent; and that he had divorced his wife in writing a few months ago. There upon the learned Sub-divisional. Magistrate ordered that the second party shall produce the talaknama and other documents by 10 a. m. on the following day positively and in the meanwhile granted him a bail of Rs. 8,000/- with a local lawyer as surety. He further directed that "as there was strong reason to believe that the documents might be fabricated, the accused would not leave basirhat Municipal area". It is not quite clear from the records as to what happened thereafter excepting that two haziras were filed on 17. 6. 72 and 19. 6. 72 showing that the second party was present in court on those days. On 26. 6. 72 the second party was present in court on filing hazira, and Shri L. V. Saptarishi, Sub-divisional Magistrate, basirhat by his order passed on the same date directed that the second party shall pay a sum of Rs. 40/- per month "as maintenance allowance to the babies of the first party, Mt. Arabia Khatun. " there was a further direction about a future contingency viz. , that "if this allowance is not paid regularly necessary action will be taken according of law. " this is not all and to make confusion worse confounded the learned Sub-divisional Magistrate proceeded to direct as follows:-

(3.) THE contentions of Mr. Sukumar mukherjee, Advocate, who appeared in support of the Rule, are of three dimensions, viz. (a) that the ultimate order passed on 26. 6. 72 is a laconic, almost a cryptic one, not based on any scintilla of evidence; (b) that all the orders including the one dated 26. 6. 72 passed in course of the proceeding, are wholly bad and repugnant, being unknown to law or to any procedure established by law, proceeding to cover even matters which are not germane to the points at issue; and (c) that the ultimate order passed is against the principles of natural justice, without holding any enquiry enjoined under Chapter XXXVI criminal Procedure Code and without even hearing the second party. Mr. Nisith Nandan Adhikari, Advocate, appearing on behalf of the wife joined issue. He submitted that the order is a laconic one but the ultimate conclusions are in order being substantially on the Talaknama; that proceedings under section 488 are short and summary proceedings and by and large there is a conformance to the said provisions; and that the second party had in fact appeared in the said proceedings and filed his objection.