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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 260-261 OF 2017 [@ SPECIAL LEAVE PETITION (CRL.) NO. 9773-9774 OF 2015 ] SUSHILA KUMARI                             Appellant(s)

                               VERSUS COL. SATISH CHANDER                       Respondent(s)

J U D G M E N T KURIAN, J. 1. Leave granted.

2. Heard Sh. Narender Hooda, learned senior counsel appearing for the appellant and Mr. Rakesh Dahiya, learned counsel appearing for the respondent.

3. The  appellant  has  challenged  the  order  dated 26.08.2015  passed by  the High  Court of  Punjab and Haryana at Chandigarh in CRR No. 1654 of 2012 (O&M) and CRR (F) No. 151 of 2013 (O&M).  Both petitions were taken up and disposed of by a common Judgment.

4. The  short  impugned  Judgment  is  reproduced  as under :-

“On the intervention of the Court, Lt.

Col.  Satish  Chander  along  with  his

counsel Mr. Aman Pal, Advocate as well

as Smt. Sushila Kumari along with her

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counsel  Mr.Babbar  Bhan,  Advocate,  who

are  present  in  Court,  have  resolved

their  dispute whereby  Lt. Col.  Satish

Chander undertakes to pay Rs. 21,000 per

month w.e.f. today as maintenance which

shall be credited to the bank account of

Smt. Sushila Kumari every month through

the salary/pension account of Lt. Col.

Satish Chander for which he would issue

necessary instructions to the authority

concerned  for  regularly  crediting  the

amount. Lt. Col. Satish Chander further

undertakes that after every five years

w.e.f. today he will increase the amount

of  maintenance  by  Rs.2,000

automatically.  Both  the  parties

undertake that they shall withdraw all

the  litigation  pending  against  each

other  except the  divorce petition  and

shall  not  initiate  any  other  fresh

litigation  against  each  other  arising

out of this matrimonial dispute. It has

been further  agreed that out of the

total arrears amounting to Rs. 9,21,000

till  August,  2015,  an  amount  of  Rs.

3,56,000 which is still unpaid shall be

paid  by  Lt.  Col.  Satish  Chander  to

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Smt.Sushila  Kumari within  a period  of

six  months in  equal installments.  The

parties  shall  be  bound  by  this

settlement.

In the light of statements made before

the Court by both the sides, the present

petitions stand disposed of.”

5. According  to  the  appellant,  the  facts,  as recorded by the High Court in the impugned Judgment, were factually incorrect and there was no agreement as recorded by the Court as far as withdrawal of the cases are concerned.  The agreement was only to the schedule of payment of arrears and enhancement of the maintenance  by  Rs.  1000/-.   In  that  view  of  the matter, the appellant filed an application for recall of  the  impugned  order,  being  Criminal  Misc. Application No. 30993 of 2015.  At paragraph 6 of the said application, it has been averred as follows :-

“That  this  Hon'ble  Court  in  the

order/judgment has mentioned that both

the parties undertake to withdraw all

their  litigation  pending  against  each

other except the divorce petition and

shall  not  initiate  any  other  fresh

litigation  against  each  other  arising

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out of this matrimonial dispute.  It is

respectfully  submitted  that  the

petitioner along with her Advocate who

was  present  in  the  Court  vehemently

opposed to withdraw any pending cases

before  the  Court.   The  Hon'ble  Court

had  asked  the  petitioner  to  sign  the

agreement but the petitioner refused to

do so still this Hon'ble Court recorded

in the judgment that both the parties

undertake to withdraw all pending cases

which is far from the facts.”       6. It is further stated at paragraph 7 that four criminal cases pending between the parties cannot be withdrawn.   Paragraph  7  of  the  application  is reproduced below :-

“7. That  the  pending  cases  between

the petitioner and Col.Satish Chander,

if gone into their details, cannot be

withdrawn  under  the  circumstances

mentioned below:-

(a)  That  the  Bhiwani  Family  Court

allowed  the  marriage  expenses  for

Rs.4,00,000/-  (Rupees  four  lacs)  on

12.01.2015  in  2002/2012  in  Sneh  Lata

Vs. Col.Satish Chander, the execution

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petition  Exe/0000340/2015  is  pending

before Hon'ble Family Court, Bhiwani.

Therefore  at  this  stage  of  its

execution how petitioner can be forced

to  withdraw  the  execution  petition

since  all  the  expenses  made  by  the

petitioner  for  her  daughter  marriage

was  after  obtaining  the  loans  from

relations and friends and the same is

required to be paid back to them by the

petitioner.

(b)  That  the  petitioner  as  well  as

Col.Satish  Chander  have  filed  appeal

before this Hon'ble Court for increase

of  the  grant  of  marriage  expenses

therefore, the same cannot be withdrawn

as FAO No.3676 of 2015 and FAO No.4356

of 2015 are pending before this Hon'ble

Court.

(c)  That  the  petitioner  was  granted

maintenance  on  06.3.2012  for

Rs.20,000/-  P.M.,  the  petitioner  has

filed a suit under section 127 Crl.P.C.

for enhancement of maintenance because

it is not possible to live in a minimum

required means by Award of Rs.20,000/-

which  includes  her  house  rent  also

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therefore,  the  same  can  not  be

withdrawn.

(d) That the petitioner was left with

no  means  by  Col.Satish  Chander  when

they both were residing at Flat No.4-C

Sivsakti Apartment Plot No.10 Sec.10,

Dwarka, New Delhi.  Col.Satish Chander

while  deserting  the  petitioner  took

away  his  CSD  Canteen  Card,  LPG  Gas

connection papers, ATM Card along with

all  the  cheque  books.   Col.Satish

Chander  in  collusion  with  the  house

owner  got  the  electricity  and  water

connection dis-connected specially when

her daughter was appearing for M.Tech

examination.   Finally  when  the

petitioner had gone out of flat and her

daughter  had  gone  to  college,

Col.Satish Chander got the house locked

by the house owner by putting another

lock  over  the  lock  of  petitioner

already  put  by  the  petitioner.   The

petitioner was not allowed to enter in

the society premises of house thus her

all belonging except the  clothes she

was wearing was under the control of

house owner.  This was done by help and

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advise  of  Col.Satish  Chander,

therefore, the petitioner filed a case

for  domestic  violence  against

Col.Satish  Chander  which  is  on  its

final stage of hearing and can not be

withdrawn it under any circumstances.

(e)   Therefore  despite  the  facts

mentioned above this Hon'ble Court has

mentioned  that  both  the  parties

undertake to withdraw the pending cases

which  was  never  agreed  at  all  the

endorsement made on this issue needs to

be recalled by this Hon'ble Court.”

7. Hence, at paragraph 11 of the application, the appellant prayed as follows :-

“11. That  this  Hon'ble  Court  has

committed grave error of law and facts

while  coming  to  the  conclusion  and

passed  the  judgment  dated  26.08.2015,

which is apparently a legal error on

the face of it which has resulted into

a grave miscarriage of justice for the

applicant and same is to be rectified

by  this  Hon'ble  Court  by  taking

cognizance  of  the  application  and  to

meet the end of justice in furtherance

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of doing complete justice.”

8. The said application was taken up by the High court on 23.09.2015, when the High Court passed the following order :-

“Heard.

No ground is made out for recalling of

the  order  dated  26.08.2015  passed  by

this Court.   

The application stands dismissed with

special  costs  of  Rs.  10,000/-  to  be

paid to the High Court Legal Service

Committee.”

9. Having  regard  to  the  averments  made  in  the application for recall, it is fairly clear that it cannot be said that there is no ground made out for recalling  the  order  dated  26.08.2015.   Mr.  Babbar Bhan, learned counsel, who appeared for the appellant before the High Court, has also filed an Affidavit before this Court, supporting the averments in the application, which is extracted above.

10. Since we propose to remit the review applications to the High Court, we refrain from making any further observation  at  this  stage.   The  order  dated 23.09.2015 is set aside and CRM No. 30993 of 2015 in

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C.R.R.(F) No. 151 of 2013 is remitted to the High Court.

11. We request the High Court to consider the recall application  on  merits  and  pass  appropriate  orders therein in accordance with law.  In order to avoid further round of litigation on an ancillary aspect, we also make it clear that even if the High Court finds  that  the  learned  advocate  had  given  the consent,  the  application  may  be  considered  as  one filed  for  relieving  the  appellant  from  the undertaking given by the counsel.   

12. With the above observations and directions, the appeals are disposed of.

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ A. M. KHANWILKAR ]  

New Delhi; February 08, 2017.