Allahabad High Court
Pankaj Kumar Pandey vs State Of U.P. Thru. The Prin. Secy. ... on 18 April, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- APPLICATION U/S 482 No. - 3738 of 2023
Applicant :- Pankaj Kumar Pandey
Opposite Party :- State Of U.P. Thru. The Prin. Secy. Home, Civil Secrtt. Lko. And Others
Counsel for Applicant :- Verender Kumar Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Anirudh Kumar Singh, learned A.G.A.-I for the State and perused the material placed on record.
Instant application under section 482 Cr.P.C. has been filed with the prayer to quash the arbitrary and illegal impugned recovery warrant dated 20-03-2023 passed by the learned Principal Judge, Family Court, Barabanki in Criminal/Execution Case No. 83 of 2022 and 477 of 2022, Smt. Karishma and another Vs. Pankaj Kumar Pandey, under section 125(3) Cr.P.C.
Learned counsel appearing for the applicant submits that the learned trial court while ignoring the objections of the applicant, has passed the impugned order dated 20-03-2023. He added that the instant matter pertains to a matrimonial dispute and an application under section 125(3) Cr.P.C. was instituted, wherein the present applicant has filed objections, but, ignoring the same, learned Magistrate has passed the order, which is against the law propounded by the High Court.
In support of his contentions, he has placed reliance on the Judgment of this court reported in AIR 2005 Allahabad 403, Dilshad Haji Risal Vs. State and has referred paragprah no. 6 of the aforesaid Judgment, which is extracted hereinunder :-
6. Therefore, in view of this position it was the duty of the learned Magistrate to have decided the objections as filed by the applicant husband under section 125(3) Cr.P.C. Therefore, the learned Magistrate has erred in issuing the recovery warrant without deciding objections."
Referring the aforesaid, he submits that the case of the present applicant is squarely covered with the Judgment aforesaid as the coordinate Bench of this court while dealing with the matter held that 'the duty of the learned Magistrate to have decided the objections as filed by the applicant husband under section 125(3) Cr.P.C. Therefore, the learned Magistrate has erred in issuing the recovery warrant without deciding objections."
He has also relied upon another Judgment of this court reported in AIR Online 2021 All 2717, Mohammad Usman alias Bhai Lal Vs. State of U.P. and has referred paragraph no. 38 of the said Judgment, which is extracted hereinunder :-
38. Applying the aforesaid principles of statutory construction, the proviso to sub-section (3) of Section 125 would have to be held to be confined to the section which precedes it. The limitation of one year provided in terms thereof would have to be read in relation to issuance of a warrant for recovery of an amount due in terms of an order of maintenance passed under sub-section (1) of Section 125(. The aforesaid limitation of one year under the proviso to Section 125(3) cannot be held to travel beyond or stretch to an extent so as to being within it ambit the powers relating to enforcement of an order of maintenance under Section 128 of the Code."
Referring the aforesaid, he submits that the limitation provided in the Act is mandatory and thus, the learned Magistrate while passing the impugned order has also ignored the same.
After the aforesaid submissions, while concluding his arguments, he submits that in view of law propounded by the High Court, which was ignored by the trial court while passing the impugned order, the order dated 20-03-2023, cannot sustain in the eyes of law and the same is liable to be set aside.
On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that a detailed order has been passed by the trial court while considering the provisions of the Cr.P.C. and the present applicant only with a view to deviate the payment of maintenance amount to the wife, has instituted the instant application and thus, the application is liable to be dismissed.
Considering the submissions of learned counsel for the parties and the law propounded by the coordinate Benches of this court, the order dated 20-03-2023 passed by the learned trial court is hereby set aside.
The matter is remitted back to the trial court for decide the matter afresh in accordance with law while considering the objections of the applicant, which have already been filed.
The trial court is further directed to decide the matter within thirty days, after receiving this order.
In view of the aforesaid observations, the instant application is hereby disposed of.
Order Date :- 18.4.2023
AKS
