Ashu Jain vs State Of U.P. And 3 Others
2023 Latest Caselaw 22130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:165660                                                  A.F.R.
 
Reserved on 25.07.2023
 
Delivered on 17.08.2023
 
Court No. - 87 
 

 
Case :- APPLICATION U/S 482 No. - 15078 of 2023 
 

 
Applicant :- Ashu Jain 
 
Opposite Party :- State Of U.P. And 3 Others 
 
Counsel for Applicant :- Shruti Malviya 
 
Counsel for Opposite Party :- G.A.,Amit Daga 
 

 
Hon'ble Neeraj Tiwari,J.

1. Heard Ms. Shruti Malviya, learned counsel for the applicant, learned A.G.A. for the State and Sri Amit Daga, learned counsel for the opposite party No. 2.

2. Present application has been filed with following prayer:-

"The present 482 Cr.P.C. application has been filed to quash the order dated 03.03.2023 passed in Case No. 244/11 of 2015(Smt. Ashu Jain and others Vs. Shri Ashu Jain) passed by Additional Principal Judge, Family Court, Court No. 1, Muzaffar Nagar."

3. Sri Amit Daga, learned counsel for the opposite party No. 2 has raised preliminary objection and submitted that applicant is having statutory remedy to file revision under Section 19 of Family Courts Act, 1984(hereinafter referred to as, 'Act, 1984') read with Section 397 of Code of Criminal Procedure, 1973, (hereinafter, referred to as, 'Cr.P.C.'), therefore this application under Section 482 Cr.P.C. is not maintainable.

4. Ms. Shruti Malviya, learned counsel for the applicant though not disputed the submission made by learned counsel for the opposite party No. 2, but submitted that though the revision is maintainable against an order of Family Court, but there is no absolute bar. In the present case, applicant is also raising question of fact, which is not possible in revision, therefore, application may be entertained.

5. She further submitted that Apex Court in the matter of Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra and another: 2009(2) SCC 370 and Prabhu Chawla Vs. State of Rajasthan & Anr: (1977) SCC 551 has considered this fact and is of the opinion that an application under Section 482 Cr.P.C. is equally maintainable challenging the order passed by Family Court.

6. Per contra, learned counsel for the opposite party No. 2 submitted that in light of Section 19 of Act, 1984, read with Section 396 of Cr.P.C., except as provided in Section 19 of Act, 1984, no appeal or revision shall lie to any court from any judgment, order or decree of the Family Court. He also pointed out that against the very same judgment/order dated 03.03.2023, plaintiff/opposite party No. 2 has filed Criminal Revision No. 3148 f 2023, which is pending before this High Court. Therefore, this application is not maintainable and the only remedy available to the applicant is to file criminal revision. He placed reliance upon the judgments of Uttarakhand High Court in Crl. Mis. Application(C-482) No. 434 of 2018: Ashu Dhiman Vs. Smt. Jyoti Dhiman, Madhya Pradesh High Court in Misc. Criminal Case No. 60364 of 2022: Rajendra Kumar Vs. Smt. Rukhmani Bisen.

7. I have considered rival submissions made by learned counsel for the parties, perused the record as well as judgments relied upon.

8. In the present case, this Court has to decide, as to whether, against a final order passed by the Family Court, instead of filing criminal revision as provided under Section 19 of Act, 1984, application under Section 482 Cr.P.C. is maintainable or not.

9. Brief facts of the case are that, plaintiff/opposite party No. 2 has filed case under Section 125 Cr.P.C. for payment of maintenance, which was partly allowed vide order dated 03.03.2023. As both the parties are aggrieved by the said order, therefore, plaintiff/opposite party No. 2 has preferred Criminal Revision No. 3148 of 2023, whereas, defandant/applicant has preferred present Application Under Section 482 Cr.P.C. challenging the very same order.

10. Ms. Shruti Malviya, learned counsel for the applicant has placed reliance upon the judgments of Hon'ble Apex Court in the matter of Dhariwal Tobaco Products Ltd.(Supra).

11. From the perusal of the aforesaid judgment, it is apparently clear that undisputedly, Court may entertain application under Section 482 Cr.P.C., but while entertaining the same it has to see as to whether, matter is civil in nature and is given cloak of criminal offence or there is gross miscarriage of justice or lack of jurisdiction. It has also been expressed by the Court that inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

12. She also placed reliance upon the judgment of Hon'ble Apex Court in the matter of Prabhu Chawla(Supra). Relevant paragraphs of the said judgment are quoted hereinbelow:

"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific rovision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharashtra this Court hasexhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction". In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10). The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible." I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both ides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the rder has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified." In our considered view any attempt to explain the law further as regards the issue relating to inherent ower of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. "abuse of the process of the Court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.

In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months."

13. While dealing with the issue in the aforesaid matter, Apex Court has relied upon the Judgment of Dhariwal Tobaco Products Ltd.(Supra), Court has made it very clear that though the application under Section 482 Cr.P.C. is maintainable, but in a very special circumstance like criminal proceeding initiated illegally or without jurisdiction. Court has further clarified that power under Section 482 Cr.P.C. may be exercised in case glaring injustice stares the court in the face.

14. So far as present case is concerned, there is nothing extraordinary circumstance and the only submission is that applicant wants to raise certain factual issues, which may not be entertained in revision, therefore, Court may entertain the application under Section 482 Cr.P.C. for the convenience of applicant, which is not permissible in light of interpretation made by the Apex Court in the matter of Dhariwal Tobaco Products Ltd.(Supra) as well as Prabhu Chawla(Supra).

15. For initiating proceeding under Section 125 Cr.P.C., procedure is provided in the Act, 1984 and relevant provision is Section 19 of Act, 1984, which is being quoted hereinbelow:

"19. Appeal.--(1) Save as provided in sub-section(2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family court.

(6) an appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

16. Section 19 of the Act, 1984 clearly provides about the provision of appeal or revision only against the order or decree of the Family Court. The law is settled that special law shall prevail over the general law. Therefore, in light of provision under Section 19 of the Act, 1984, the only remedy before the applicant is to file revision under Section 397 Cr.P.C. in case the matter doesn't fall within the exceptions provided by the Apex Court in the matter of Dhariwal Tobaco Products Ltd.(Supra) as well as Prabhu Chawla(Supra).

17. Similar matter was before Uttarakhand High Court in Ashu Dhiman(supra) and the Court has taken the same view. Relevant paragraph of the aforesaid judgment is quoted hereinbelow:

"17. In view of the definition of the interlocutory order and the ratio of the judgment supra, this Court is of the view that an order passed under Proviso to sub section (1) of Section 125 of Cr.P.C. rejecting or allowing an application for maintenance, pending proceedings, is not an interlocutory order which adjudicates the rights of the parties to some extent. The revision under Section 397 of Cr.P.C. is maintainable. It has been held that such an order is amenable to revisional jurisdiction of this Court. The powers of High Court under Section 482 of Cr.P.C. are inherent in nature and could be exercised where statutory remedy of appeal and revision under the Cr.P.C. is not available. Thus, in view of the findings recorded above that revision against such an order is maintainable, an application under Section 482 of Cr.P.C. would not be maintainable. The core issue framed by this Court to deal with the controversy is answered accordingly. Since the criminal misc. applications filed by the applicant(s) under Section 482 of Cr.P.C. are not maintainable, the applicant(s) would be at liberty to avail the remedy of filing revision, if so advised.

18. Again this issue was subject matter before the Madhya Pradesh High Court in Rajendra Kumar(Supra) and view of the Court was again the same. Relevant paragraph of the said judgment is quoted hereinbelow:

"18. Considering the above legal position, I am of the considered view that order of maintenance affects right of a person drastically and substantially, hence, it cannot be treated as interlocutory order and criminal revision should be preferred under Section 19(4) of the Family Courts Act against the order passed on the application for interim maintenance by the Family Court."

19. Therefore, in view of facts and circumstances of the case as well judgments discussed hereinabove, present application is not maintainable coupled with the fact that Criminal Revision No 3148 of 2023 filed by opposite party No. 2 against the very same order dated 03.03.2023, is pending before this Court.

20. Accordingly, application is dismissed on the ground of maintainability.

21. Office is directed to return the certified copy of the impugned order to counsel for applicant after keeping photo copy of the same on record.

Order Date :- 17.08.2023

ADY