Asha Ram Tripathi vs State Of U.P. & Another
2012 Latest Caselaw 4643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 48
 

 
Case :- CRIMINAL REVISION No. - 265 of 2001
 

 
Petitioner :- Asha Ram Tripathi
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- B.S. Pandey
 
Respondent Counsel :- Govt. Advocate,Anakshi Sharma,Ravindra P. Srivastava,Sanjeev Ratan
 

 
Hon'ble Mushaffey Ahmad,J.

Heard learned counsel for the parties, and perused the record.

This revision has been filed against the order dated 18.12.2000 passed by the Ist Additional Sessions Judge, Basti in Criminal Revision No. 2 of 2012, whereby he allowed respondent No. 2 opportunity of hearing  on the revision, which had been dismissed in the absence of respondent No. 2 and her counsel. Learned counsel for the revisionist contends that the order dated 11.04.2000 was passed on merits inasmuch as the learned Judge observed, 'there is no any material error or irregularity found in the impugned order. The order is well within the jurisdiction of the lower court. It is just and proper. It need not any interference as such, there is no force in this petitioner, which is liable to be dismissed.'

Learned Counsel argues that section 362 Cr.P.C. places a bar on the powers of the Criminal Court to recall its own order; there is no provision for restoration or review in the Criminal Procedure Code and therefore the order under challenge is an illegality. In support of his arguments, learned counsel refers to case laws in the cases Reeta Nag vs. State of West Bengal and others 20009-LAWS (SC)-8-82 and Ram Sewak Rai vs. State of U.P. and others Criminal Revision No. 1002 of 2003 decided by learned Single Judge Bench of this Court on 23.07.2010; Ramesh vs. State of U.P., Criminal Misc. Application No. 2749 of 2005 decided on 16.11.2007.

Learned counsel for the respondent on the other hand tries to defend the order, and to support his arguments he prays in aid of  Ram Abhilakh vs. State of U.P. 2007-LAWS (SC)-2-151 and Chhangur Maurya vs. State of U.P. 1997 JIC-0-866.

As regards the position of law that a criminal court cannot allow or review its own order except correcting clerical errors in it, it is well settled as there is no provision for review under Criminal Procedure Code. Section 362 Cr.P.C. places a bar clearly on the court not to amend the order already passed.The provision under section 362 is conditioned by words'save as otherwise provided by this Code or by any other law for the time being in force'

To appreciate the scope of section 362 Cr.P.C. in the context of the present case, it would be appropriate to look into the  background in which the impugned order was passed. Respondent No. 2,claiming maintenance from the revisionist could not appear on the date fixed and also her counsel being on strike, as it is alleged, did not appear to press the revision and the revision was dismissed by order dated 11.04.2000. The respondent No. 2 approached the revisional court with an application that she was ill on the date fixed and her counsel was on strike and no one pressed the revision and it was dismissed without any hearing. The learned revisional court very sagaciously observed that in those circumstances the revisionist was entitled to a hearing, and citing case laws the learned revisional Court allowed the application permitting her to be heard on the revision.

The provisions of maintenance have been engrafted in the Criminal Procedure Code obviously to make them prompt and effective. The provisions have been interpreted by the Courts to read in such other provisions as may be  necessary for providing relief to the ladies and her children and protecting them from beggary and destitution.

In the case of Savitri vs. Govind Singh Rawat (1985) 4 SCC 337, the Hon'ble Supreme Court introduced provisions for interim maintenance for the helpless lady and children. The exposition of law brought  about an amendment in Section 125 Cr.P.C. itself. Special provision for recalling ex-parte order has been made under section 126 Cr.P.C. The maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest" (Where anything is conceded, there is conceded also anything without which the thing itself exist.) has been explained and expatiated upon to breathe in humanism into the heart of procedural and technical monsterity. 

Considering the true nature of the provisions, the courts have termed the proceedings as civil or quasi civil in nature. In the cases of Sk. Alauddin vs. Khadiza Bibi, 1991 CrLJ 2035  (Cal); Shabihul Hasan Jafari v. Zarin Fatma, 2000 CrLJ 3051 (All); Kusum Devi (Smt.) v. Ram Chndra Maurya, 2004(1) Crimes 153 (156) (All); Mandakini B. Pagire v. Bhausaheb Genu Pagire, 2009 CrLJ 70 (73): 2008 (6) Mah LJ 468 (Bom); Aruna Kar v. Sarat Das, 1993 CrLJ 1586 (Ori-DB); Surya Kanth v. Allamaparabhu, 2000 CrLJ 120 (Kant); State v. Bhimrao, AIR 1963 Mys 239: 1963 (2) CrLJ 293; Kehari Singh v. State of U.P., 2005 CrLJ 2330 (All), the courts have held that if the application under section 125 Cr.P.C. has been dismissed in default, it may be restored on showing sufficient cause and the restoration should be liberally construed. 

In the case of Ram Abhilakh vs. State of U.P. (supra), what Hon'ble Supreme Court has observed, is being quoted below:

"(6) On 29.9.2006 notice was issued, limited to the question as to why the High Court should not re-hear the matter since the High Court dismissed the Revision Petition without hearing the appellant. There is no appearance on behalf of the respondent.

(7) There is no dispute that prior to the date of disposal i.e. 30.1.2004 the appellant was diligently pursuing the remedy. The appellant had also pointed out circumstances due to which the appellant's counsel could not appear on the date fixed. The plea has not been disbelieved.

(8) Considering the background facts as highlighted above it is clear that the appellant has always been diligently pursuing the case. It is not the case of the respondent No. 2 that the appellant was in any manner responsible for delay in the proceedings.

(9) Above being the position, we set aside the orders of the High Court dated 30.1.2004, 17.4.2006. The High Court shall hear the matter on merits. To avoid unnecessary delay, let the parties appear without further notice on the 9th March, 2007 so that the concerned Bench can fix a date for hearing of the matter. Learned Chief Justice of the High Court is  requested to pass necessary orders as to before which Bench the matter shall be listed. Appeal is allowed to the aforesaid extent."

The proceedings under section 125 Cr.P.C. having been held civil in nature and restoration has been allowed on showing sufficient cause for the default, the complexion of the proceedings should not change before the learned revisional court. The learned revisional court by order dated 11.04.2000 did not consider the merits of the case nor it was decided on merits and mere mention of sacrosanct terms such as ' There is no any material error or irregularity found in the impugned order. The order is well within the jurisdiction of the lower court' does not show the learned Judge delved  into the merits of the case.

It is not disputed that respondent No. 2 was absent although she had diligently pursued claim for maintenance for herself and her children upto the revisional court.  The revision was dismissed in default when the lawyers were on strike.

I am of the view that the order dated 18.12.2000  was rightly passed by the revisional court on the application of respondent No. 2.

Therefore, I hold the revisional court by passing the impugned order committed no illegality. The revision has no force and is hereby dismissed. The parties are directed to appear before the revisional court on 05.11.2012.

Order Date :- 1.10.2012

Sazia