Uttarakhand High Court
Saurabh Negi vs State Of Uttarakhand And Another on 23 December, 2022
Reserved
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Miscellaneous Application No. 785 of 2021
Saurabh Negi ...... Petitioner
Vs.
State of Uttarakhand and Another ..... Respondents
Presents:-
Mr. Raman Kumar Shah, Advocate for the petitioner.
Mr. B.P.S. Mer, Standing Counsel for the State of Uttarakhand.
Mr. Ganga Singh Negi, Advocate for the private respondent.
JUDGMENT
Per: Hon'ble Ravindra Maithani, J.
The challenge in this petition is made to
order dated 27.01.2021, passed in Misc. Case No. 8 of
2021, Saurabh Negi Vs. Vibha Negi, by the court of
Additional Chief Judicial Magistrate, Kotdwar, Pauri
Garhwal. By it, an application under Section 127 of the
Code of Criminal Procedure, 1973 ("the Code"), filed by
the petitioner, has been dismissed.
2. Heard learned counsel for the parties and
perused the record.
3. Facts necessary to appreciate the
controversy, briefly stated, are as follows: the private
respondents filed an application under Section 12 of the
Protection of Women from Domestic Violence Act, 2005
("the Act"), based on which proceedings of Misc. Criminal
Case no. 97 of 2013, Smt. Vibha Negi Vs. Saurabh Negi
and others, was instituted in the court of Additional
Chief Judicial Magistrate, Kotdwar, Pauri Garhwal ("the
case"). The case was decided on 27.09.2016 and the
petitioner has been directed to pay Rs.15,000/- per
month as maintenance to the private respondent.
Certain other directions were also issued in the case.
4. The judgment and order dated 27.09.2016,
passed in the case, was further challenged by the
petitioner in Criminal Appeal No. 78 of 2018, Saurabh
Negi and Another Vs. Smt. Vibha Negi and Another, by
the court of District and Sessions Judge, Pauri Garhwal
("the appeal"). It was decided on 11.01.2019. Both these
judgments and orders, passed in the case, and, in the
appeal, were challenged before this Court in C-482
No.366 of 2019 ("the petition"), in which on 14.03.2019,
the Court directed, "Till next date of listing, effect and
operation of the impugned orders dated 27.09.2016
and 11.01.2019 rendered by learned Court below
shall remain stayed, provided the applicant pays `
30,000/- per month, as maintenance to respondent
no.2 on or before 7th day of each month."
5. Subsequent to it, the petitioner filed an
application under Section 127 of the Code seeking
modification of order dated 27.09.2016, passed in the
case. This application has been rejected by the
impugned order. In the impugned order, the court below
observed that since the judgment and order dated
27.09.2016, passed in the case, as well as the judgment
and order dated 11.01.2019, passed in the appeal, have
already been stayed by this Court on 14.03.2019, any
application for modification cannot be entertained.
6. Learned counsel for the petitioner would
submit that an application for modification under
Section 127 of the Code has to be filed in the trial court.
The court below ought to have taken cognizance of the
changed circumstances and would have modified the
order of maintenance passed on 27.09.2016, in the case.
7. Learned counsel for the private respondent
would submit that the judgment and order dated
27.09.2016, passed in the case, as well as the judgment
and order dated 11.01.2019, passed in the appeal, have
already been impugned on the date when the application
under Section 127 of the Code was filed. Therefore, the
impugned order is in accordance with law.
8. The petitioner wanted to modify an order
passed under the provisions of the Act. The petitioner
filed an application under Section 127 of the Code. For
such modification, an application could be entertained
under Section 25(2) of the Act, which is as hereunder:-
25. Duration and alteration of orders.--
(1) ..............................
(2) If the Magistrate, on receipt of an application
from the aggrieved person or the respondent, is
satisfied that there is a change in the
circumstances requiring alteration, modification or
revocation of any order made under this Act, he
may, for reasons to be recorded in writing pass
such order, as he may deem appropriate.
9. Be it as it may, the effect and operation of
the order, which the petitioner wanted to modify, had
already been stayed by this Court on 14.03.2019. In
view of it, in fact, on the date when such application was
filed, the judgment and order dated 27.09.2016, passed
in the case, as well as the judgment and order dated
11.01.2019, passed in the appeal, were not in operation.
They were not effective. Therefore, there could have been
no occasion seeking their modification.
10. Having considered the entirety of facts, this
Court is of the view that the court below did not commit
any error. This Court does not find any reason to make
any interference. Accordingly, the petition deserves to be
dismissed.
11. The petition is dismissed.
(Ravindra Maithani, J.)
23.12.2022
Ravi Bisht
