Allahabad High Court
Hari Shanker vs State Of U.P.And Another on 9 October, 2017
Bench: Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 17
Case :- CRIMINAL MISC. WRIT PETITION No. - 6963 of 2007
Petitioner :- Hari Shanker
Respondent :- State Of U.P.And Another
Counsel for Petitioner :- Sudhir Kumar Singh,Udai Shankar Chauhan
Counsel for Respondent :- Govt. Advocate,D.B. Yadav,M.S. Chauhan,S.C. Rai
Hon'ble Prabhat Chandra Tripathi,J.
Heard Sri Udai Shankar Chauhan, learned counsel for petitioner, Sri M.S. Chauhan, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the record.
In this petition the petitioner has made following prayer:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 30.6.2006 and 7.5.2007 (Annexure no.5 and 7 to this writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent not to give of the order dated 30.6.2006 and 7.5.2007.
(iii) Issue any other writ, order or direction, as this Hon'ble court may deem fit and proper under the circumstances of the case.
(iv) Award the cost of the petition to the petitioner."
Whereas paragraphs 5 and 6 of the counter affidavit filed by respondent no.2 are enumerated as herein-below.
"5. That in reply to para 6 of the writ petition, it is respectfully submitted that the contesting respondent no.2 was party to the proceeding, under Section 125 Cr.P.C. in Case No.160/2000, but nothing was decided about the mode of maintenance of the respondent no.2 in the compromise dated 24.11.2001 entered into between the mother and father of the respondent no.2. It is pertinent to mention here that the respondent no.2 is admittedly the daughter of the petitioner, she is a student having no means of livelihood as such the petitioner can not disown his responsibility to maintain his daughter, respondent no.2.
6. That in reply to para 7 and 8 of the writ petition, it is respectfully submitted that after considering the factual and legal aspects of the matter learned Magistrate has rightly allowed the application of the respondent no.2 vide order dated 30.6.2006. It is pertinent to mention here that there is no whisper about the maintenance of respondent no.2 in the compromise in Case No.160/2000. In view of the facts stated above there is no bar in filing a separate application under Section 125 of Cr.P.C. as such the order dated 30.6.2006 is just and proper."
Learned counsel for the petitioner has stated that in case no.160 of 2000 (Smt. Panna Devi and one another Vs. Hari Shankar) under Section 125 Cr.P.C., Police Station Rasara, District Ballia was pending before the court of learned A.C.J.M., First, Ballia and a compromise took place between Smt. Panna Devi applicant and Hari Shankar opposite party on 24.11.2001 and the same was signed and verified before the court of learned Special Judicial Magistrate, Ballia on the same date and the court of learned Special Judicial Magistrate, Ballia on 24.11.2001 decided the above-mentioned case in terms of the compromise filed by Smt. Panna Devi and Hari Shankar.
Later on, one another case no.172 of 2002, under Section 125 Cr.P.C. was filed by Km. Anita through her mother and natural guardian Panna Devi against opposite party Hari Shankar pertaining to Police Station Rasara, District Ballia in the court of learned Special Judicial Magistrate, Ballia. This case was decided on merits by the court of learned Additional Civil Judge (Junior Division) First/Judicial Magistrate, Ballia on 30.6.2006 whereby the Additional Civil Judge (Junior Division) First/Judicial Magistrate, Ballia has allowed the application of the applicant Km. Anita filed under Section 125 Cr.P.C. and allowed the maintenance allowance to the tune of Rs.2000/- (Two thousand) only till she attains the age of majority.
Opposite party Hari Shankar preferred a criminal revision being criminal revision no.301 of 2006 (Hari Shankar Vs. State and Anita Devi) against the aforementioned judgement and order dated 30.6.2006 of the learned Additional Civil Judge (Junior Division) First/Judicial Magistrate, Ballia before the court of learned Sessions Judge, Ballia. The criminal revision was decided on merits on 7.5.2007 by the court of learned Additional Sessions Judge/Fast Track Court No.3, Ballia and the learned Additional Sessions Judge/Fast Track Court No.3, Ballia has dismissed the criminal revision vide its order dated 7.5.2007 and confirmed the order passed by the learned Additional Civil Judge (Junior Division), First/Judicial Magistrate, Ballia.
Aggrieved by the order dated 7.5.2007 of the learned Additional Sessions Judge/Fast Track Court No.3, Ballia, the instant writ petition has been filed.
The compromise which was entered between the mother of respondent no.2 and the petitioner was binding only between both of them. The present respondent no.2 was no party to that compromise which was entered between them on 24.11.2001 and the court of learned Special Judicial Magistrate Judge, Ballia has decided the case in terms of compromise which was entered between Smt. Panna Devi applicant and Hari Shankar opposite party and it was made the part of the judgement and order dated 24.11.2001.
It has also been mentioned in the impuned order dated 7.5.2007 passed in criminal revision no.301 of 2006 (Hari Shankar Vs. State and Km. Anita Devi) passed by learned Additional Sessions Judge/Fast Track Court No.3, Ballia that the court of learned Additional Civil Judge (Junior Division), First/Judicial Magistrate, Ballia while passing the impugned order dated 30.6.2006 has ignored the provisions enumerated in Order XXXII Rule 3A of The Code of Civil Procedure, 1908. However, Order XXXII Rule 3A of The Code of Civil Procedure, 1908 is enumerated as below:-
"[3A. Decree against minor not to be set aside unless prejudice has been caused to his interests.--(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]"
In view of the above discussion, there is no illegality, impropriety or perversity in the orders dated 30.6.2006 and 7.5.2007 passed by learned Additional Civil Judge (Junior Division), First/Judicial Magistrate, Ballia and learned Additional Sessions Judge/Fast Track Court No.3, Ballia respectively in case no.172 of 2002 [Km. Anita (minor) through her mother and natural guardian Smt. Panna Devi Vs. Hari Shankar) and criminal revision no.301 of 2006 (Hari Shankar Vs. State and Km. Anita Devi) respectively.
Resultantly the writ petition is liable to be dismissed on merits.
The writ petition is dismissed on merits.
Order Date :- 9.10.2017/S.Sharma
