Allahabad High Court
Mohd. Mubeen And 2 Others vs State Of U.P. And Another on 17 August, 2021
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL REVISION No. - 1813 of 2021
Revisionist :- Mohd. Mubeen And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Madan Kumar Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Madan Kumar Tiwari, learned counsel for revisionists and learned A.G.A. for State.
2. Present revision under Sections 397/401 Cr.P.C. has been filed challenging order dated 01.04.2021 passed by Additional District and Sessions Judge, Court No.1, Etah in Criminal Appeal No.255 of 2019 (Mohd. Mobeen and others Vs. State of U.P. and another) under Sections 12 of Protection of Women from Domestic Violence Act, Police Station-Kotwali Nagar, District-Aligarh whereby aforesaid criminal appeal has been dismissed for want of prosecution.
3. Record shows that opposite party-2, Smt. Alsawa wife of applicant-1 Mohad Mubeen filed an application under Section 12 of Protection of Women from Domestic Violence Act, which was registered as Case No. 808 of 2016 ( Smt. Alsawa Vs. Mohd Mubeen). In the aforesaid, opposite party-2 filed an application (paper no.8A) whereby it was prayed for interim maintenance. This application came to be allowed by Chief Judicial Magistrate, Etah vide order dated 10.06.2019.
4. Aforesaid order dated 10. 06.2019 came to be challenged by way of above mentioned criminal appeal, which came to be dismissed for want of prosecution by means of order dated 01.04.2021.
5. Feeling aggrieved by order dated 01.04.2021, revisionists have now approached this Court by means of present criminal revision.
6. At the very outset learned A.G.A. has raised a preliminary objection by submitting that present criminal revision is not maintainable. In support of aforesaid submission, he has relied upon judgement dated 27.01.2016 rendered by a learned Single Judge of this Court in Criminal Revision No. 4016 of 2015 (Nishant Krishan Yadav Vs. State of U.P.) wherein following has been observed in paragraphs 7, 8, 9, 10, 11 and 12:-
"7. In the case of Baiju and another Vs. Latha and another reported in 2011 Cri.L.J. 4536 Kerala High Court has held that judgment of the court of Sessions in appeal preferred under Section 29 of the Act being an inferior criminal court is revisable before the High Court under Section 397 (1) and 401 of Cr.P.C., thus, the extraordinary jurisdiction vested under Section 482 Cr.P.C. was not invoked in the matter.
8. In the case of K. Rajendran and another Vs. Ambikavathy in Criminal Revision Case (MD) No. 482 of 2012 same view has been expressed by the Madras High Court regarding maintainability of the criminal revision.
9. So long as the submissions raised by the learned counsel for the revisionist that Hon'ble Supreme Court while dealing with the case of Shalu Ojha (Supra) did not consider the scope of provisions of Section 28 of the Act is concerned, I am not in agreement with the submissions. As is clear from the facts of the case of Shalu Ojha (Supra), Orders passed by the learned Sessions Judge had been challenged by way of application under Section 482 Cr.P.C and under Article 227 of the Constitution of India. Hon'ble Supreme Court after making of brief survey of the provision of Act i.e. Section 3, 12, 18, 20, 21, 23 and 29 of the Act laid down that no further appeal or revision is provided to the High Court or to any other higher court against the order of the sessions court under Section 29 of the Act.
10. The view expressed by the Hon'ble Supreme Court in Shalu Ojha (Supra) case is not casual in nature but was observed while dealing with the issue relating to the controversy arisen in the Act and the same is binding upon all the courts subordinate to the Hon'ble Supreme Court. It cannot be said that the view taken by the Hon'ble Supreme Court is not correct interpretation of the provisions of the D V Act. Looking to the law laid down by the Hon'ble Supreme Court in the case of Shalu Ojha (Supra) with deepest regard I am not in agreement with the view expressed by the Kerala High Court in the case of Baiju and another (Supra) and the Madras High Court in K. Rajendran (Supra) case. Submissions raised by the learned counsel for the revisionist regarding maintainability of the present revision is not acceptable and the criminal revision is not maintainable.
11. So far as the merit of the case is concerned, since revision is not maintainable, therefore, I do not find any necessity to discuss the merit of the case.
12. In view of the above discussion, the Criminal Revision being not maintainable is dismissed at this stage itself."
7. When confronted with above, learned counsel for revisionists could not overcome the same.
8. In view of above, present criminal revision is dismissed as not maintainable.
9. However, liberty of revisionists is to file a petition under Article 226, a Petition under Article 227 of Constitution of India or an application under Section 482 Cr.P.C.
10. Certified copy of the impugned order shall be returned to learned counsel for revisionist after obtaining a photocopy of the same to be kept on record.
Order Date :- 17.8.2021
YK
