Sumit Kuamr Sogani vs Pallavi Jain @ Sogani
2025 Latest Caselaw 8796 Gua

Gauhati High Court

Sumit Kuamr Sogani vs Pallavi Jain @ Sogani on 24 November, 2025

                                                                     Page No.# 1/7

GAHC010157232024




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                             THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : Crl.Rev.P./297/2024

           SUMIT KUAMR SOGANI
           S/O SRI LAXMI NARAYAN SOGANI,
           ADDRESS- PANCHARATNA APARTMENT, 2ND FLOOR, BLOCK A4, S. J.
           ROAD, ATHGAON, GUWAHATI, PIN-781001, DIST. KAMRUP (M), ASSAM



           VERSUS

           PALLAVI JAIN @ SOGANI
           D/O SRI MANOJ KUMAR JAIN
           R/O AASHI PRIDE, BLOCK-C, 4TH FLOOR, FLAT NO. 4B, KUMARPARA
           FATASIL ROAD, GUWAHATI, DIST.KAMRUP (M), ASSAM, PIN- 781001,
           ASSAM



Advocates for the petitioner: Mr. S Chamaria


Advocate for the respondent: Mr. O.P Bhati

BEFORE HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date of Hearing : 11.11.2025

Date of Judgment : 24.11.2025 Page No.# 2/7

JUDGMENT AND ORDER (C.A.V)

1. Heard Mr. S Chamaria, learned counsel for the petitioner. Also heard Mr. O.P Bhati, learned counsel appearing for the sole respondent.

2. This revision petition has been directed against an order dated 20.07.2024 passed by the Ld. Sub-Divisional Judicial Magistrate (S)-II, Kamrup (M) in Misc (D.V) Case No. 32m/2017, Guwahati whereby D.W.A (Distress Warrant of Arrest according to the petitioner) issued against the present petitioner on account of his failure to pay maintenance to the respondent as per order dated 07.03.2019 passed by the Ld. Addl. District & Sessions Judge, Kamrup (M) in Criminal Appeal No. 137/2018 directing the petitioner to make a payment of Rs. 30,000/- to the respondent and Rs. 20,000/- to the child as interim monthly maintenance totaling Rs. 50,000/- per month which was in modification of the order of the Ld. Magistrate dated 30.06.2018 directing the petitioner to pay a total of Rs. 1,00,000/- per month to the respondent in the same case.

3. For the purpose of the instant revision, it is not necessary to go into the detailed facts which, briefly put, are that the parties were married on 30.04.2007 and out of their wedlock a son was born who is presently living with the respondent, separately from the petitioner since 02.11.2016.

4. Subsequently, the respondent had approached the Ld. Court below by filing an application under the Protection of Women from Domestic Violence Act, 2005 (hereinafter the D.V Act) being Misc (DV) Case No. 32m/2017 wherein the aforesaid order of maintenance of Rs. 1,00,000/- per month was passed and subsequently, modified in appeal by the Ld. Appellate Court as stated hereinbefore.

5. Mr. S Chamaria, learned counsel for the petitioner submits, at the outset, that with regard to the maintainability of the instant revision petition in view of Section 29 of the DV Act which provides for an appeal against any order passed in a proceeding under the said act, the Revisional Court has power to interfere in respect Page No.# 3/7

of any order which is shown to be grossly erroneous, illegal or improper. In this regard, learned counsel has relied upon the decision of the Hon'ble Supreme Court in Amit Kapoor V. Ramesh Chander & Anr. reported in (2012) 9 SCC 460. In the aforesaid case, the Ld. Court held that the revisional jurisdiction can be invoked where the directions under challenge are grossly erroneous and there is no compliance with the provisions of law or the finding recorded is based on no evidence, where material evidence is ignored or judicial decision is exercised arbitrarily or perversely.

6. The second limb of the argument on the point of maintainability as projected by learned counsel is that if an appeal had been preferred then the petitioner/appellant would have had to prefer the same on questions both of law and fact and since the petitioner is only on the question of law, preferring the revision was the only remedy available to him. In this regard, reference has been made to a decision of the Hon'ble Supreme Court in Jagannath Choudhury & Ors. V. Ramayan Singh and Anr. reported in 2002 5 SCC 659 wherein it has been held as follows :

"Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal v. H.S. Chowdhary & Ors., 1992 (4) SCC 305. The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same had been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, (emphasis added) but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If Page No.# 4/7

the impugnedorder apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interfere cannot be had in exercise of revisional jurisdiction."

7. It is further submitted that the question of law involved in the present revision petition is the legality of the impugned order dated 20.07.2024 whereby the Ld. Magistrate has issued a DWA (A Standing for Arrest according to the petitioner) on account of the failure to pay the maintenance amount. In this regard, learned counsel has referred to Section 421 of Cr.P.C and its corresponding Form 43 to urge that it is not permissible to issue such a warrant in as much as the warrant of arrest is covered under form 2 to the Second Schedule of the Code of Criminal Procedure.

8. Mr. O.P Bhati, learned counsel for the sole respondent submitted that a distress warrant is issued under Section 125 of Cr.P.C and Section 431 of Cr.P.C has nothing to do with the same. In this regard, learned counsel has referred to rule 6(5) of the Rules framed under the D.V Act. It is further submitted that all the grounds taken in the instant revision could have been raised in an appeal under Section 29, but, having failed to do so the petitioner has preferred this instant revision petition which is totally misconceived. Furthermore, the initial order issuing DWA dated 18.06.2024 has not been challenged and hence, there is no scope to challenge the subsequent order dated 20.07.2024 which, even if set aside, would not affect the initial order dated 18.06.2024. Hence, the instant revision is not maintainable in any view of the matter.

9. In reply, Mr. S Chamaria, learned counsel for the petitioner submitted that Rule 6(5) referred to by learned counsel for the respondent cannot override the provisions of Section 31 of the D.V Act.

10. Before entering upon the merits of the arguments as regards the legality of the impugned order, it is necessary to first determine the maintainability of the instant revision petition, in as much as, in the event, the same is not found to be maintainable then the question of legality of the order would be one that can be considered only in an appeal under Section 29 of the D.V Act.

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11. Section 401 Cr.P.C which deals with the High Court's powers of revision, at sub-section 4 provides as follows :

"Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed".

12. Further Sub-section 5 provides as follows :

"Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

13. Section 29 of the D.V Act provides as follows :

"There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

14. In Amit Kapoor Supra cited by the learned counsel for the petitioner, the Court was not deciding any issue as to whether a revision would be maintainable when a provision for appeal has been provided by the statute. What was essentially discussed was the limited scope of the power which the Courts including the High Courts can exercise under Section 397 and 482 of the Cr.P.C. It pre-supposes the maintainability of the revision and the question of maintainability of the revision petition under consideration before the Court was not at all in question in the said case. Therefore, the petitioner cannot draw any support from the aforesaid decision.

15. The second limb of argument with regard to the maintainability of the revision advanced by learned counsel can only be described as hilarious. What has been stated in Jagannath Choudhury Supra is that in an appeal, applicant could be entitled to demand an adjudication upon all questions of fact and/or law which he wishes to raise. But in revision the only question is whether the Court should interfere Page No.# 6/7

in the interests of justice. Apart from the fact that this decision also did not decide any question regarding maintainability of a revision in the face of a statutory provision for appeal, all that has been said is regarding the entitlement of the appellant to raise all questions of fact or law which he wishes to raise. But, learned counsel for the petitioner appears to have turned the aforesaid observation on its head by submitting that in the event of filing an appeal, the petitioner would be "compelled" as against being entitled to raise questions of fact when all he intends to raise is a question of law. Therefore, this decision also does not help the petitioner in the least bit.

16. From the above discussion, there is no escape from the conclusion that in view of the provisions of Section 401(5) of Cr.P.C and Section 29 of the D.V Act cited above, the instant revision is not maintainable.

17. Although, sub-section 5 of Section 401 Cr.P.Cempowers the High Court to treat an application for revision as a petition of appeal where it is satisfied that such an application was made under the erroneous belief that no appeal lies thereto, and that it is necessary in the interests of justice to do so, in the present case, rather than entertaining any erroneous belief that no appeal lies, it has been forcefully argued by learned counsel for the petitioner that despite the existence of Section 29 providing for an appeal, the revision is very much maintainable.Therefore, the provision of sub- section 5 of Section 401 Cr.P.C also cannot come to the aid of the petitioner.

18. In view of the above, the instant petition stands dismissed as non- maintainable.

19. It would, however, be open for the petitioner to avail of any other remedy provided by law subject of course to the laws of limitation.

20. Revision stands dismissed and disposed of accordingly.

JUDGE Page No.# 7/7

Comparing Assistant

Mayur Kalita DN: c=IN, o=Personal, postalCode=781024, l=Kamrup Metro, st=Assam, street=54 AMBIKAGIRI NAGAR, Zoo Road,

akshee Dispur Assam India 781024 NEAR SHRISHTI TAILORS, title=3914, 2.5.4.20=cc2c6557fa3d118dee566 6b32bf91efbbbfcdb804fec6e2cfc9 0850eb73700ce,

Kalita serialNumber=b7e79acf730e9990 4fe79eda21e1fc9af64f1ae076abe5 f4e0713535b14482a3, [email protected], cn=Mayurakshee Kalita Date: 2025.11.26 11:11:58 +05'30'