Uttarakhand High Court
Sandeep Kumar Pathak And Others. ... vs State Of Uttarakhand And Another on 28 November, 2023
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF
UTTARAKHAND
AT NAINITAL
SRI JUSTICE RAKESH THAPLIYAL, J.
NOVEMBER 28, 2023
Criminal Misc. Application No. 2265 OF 2023
Sandeep Kumar Pathak and Others. .......Applicants.
Versus
State of Uttarakhand and Another. .......Respondents.
Criminal Misc. Application No. 2266 OF 2023
Sandeep Kumar Pathak and Others. .......Applicants.
Versus
State of Uttarakhand and Another. .......Respondents.
Counsel for the applicants: Mr. Lalit Sharma, learned
counsels for the applicants.
Counsel for the respondents: Mr. M.A. Khan, learned A.G.A
along with Mr. Deepak
Bhardwaj, learned Brief Holder
for the State.
Upon hearing the learned Counsel, the Court made the following
Order: (per Sri Rakesh Thapliyal, J.)
1. The applicant no.1 married with the respondent no.2-
the complainant on 10.12.2014. Out of this wedlock, a
daughter was born in the year 2016. After this, some
differences were arisen between applicant no.1 and
respondent no.2. Consequently, a Divorce Petition was filed
on 01.09.2018 by the applicant no.1 on the ground of cruelty,
i.e. under Section 13 (1)(i) of the Hindu Marriage Act, 1955.
The said divorce suit was registered as Divorce Suit No. 2871
of 2018.
2. Simultaneously, after filing the divorce petition, a
complaint was filed by respondent no.2, in the Court of
Additional Chief Judicial Magistrate, Haldwani, under
Section 12 of the Protection of Women from Domestic
Violence Act, 2005.
3. Apart from this, another proceeding was also initiated
by respondent no.2 under Section 125 Cr.P.C. for
Maintenance, and it has been decided on 31.10.2023,
whereby, a maintenance of Rs. 14,000/- per month has been
granted to the wife, and simultaneously, Rs. 14,000/-
maintenance was also granted to the daughter from the date
of order passed in the proceeding under Section 125 Cr.P.C.
4. It is contended by learned counsel for the applicants
that the divorce suit was decreed on 31.05.2022, against
which, a regular appeal has been preferred before this Court,
which is pending for adjudication, and it has not been
admitted so far.
5. It is further contented that though the divorce suit was
decreed on 31.05.2022., but after this, on 13.02.2023, the
complaint, moved by respondent no.2 under Section 12 of
the Protection of Women from Domestic Violence Act, 2005,
was allowed ex-parte on 13.02.2023.
6. Learned counsel for the applicants submits that, in fact,
the complaint, which was preferred by the respondent no.2
under Section 10 of the Domestic Violence Act, no notices
were ever been issued to the applicants, particularly, the
applicant no.1, and since service was not affected upon the
applicant no.1, consequently, the complaint was allowed in
an ex-parte manner on 13.02.2023.
7. The applicants got information about the ex-parte order
dated 13.02.2023 on 29.04.2023, since the same date was fixed
in the proceedings initiated under Section 125 Cr.P.C.
8. After getting information about the ex-parte order on
29.04.2023, the applicants preferred an application for
recalling of the ex-parte order dated 13.02.2023, and
simultaneously, the applicants also put their appearances in
the appeal, which was preferred by the respondent no.2
against the ex-parte order dated 13.02.2023
9. These are the two petitions, preferred under Section
482 Cr.P.C. In C482 Application No.2265 of 2023, the
applicants are praying for stay of the proceeding of Criminal
Appeal No. 15 of 2023, pending in the Court of Ist Additional
District and Sessions Judge, Haldwani, which has been
preferred against the ex-parte order dated 13.02.2023, passed
in a complaint of respondent no.2, under Section 12 of the
Protection of Women from Domestic Violence Act, 2005, on
the ground that against the ex-parte order dated 13.02.2023, a
recall application for revocation of the ex-parte order dated
13.02.2023, has been moved, which is pending.
10. Learned counsel for the applicants submits that since
the recall application for revocation of ex-parte order dated
13.02.2023, is pending for consideration, therefore, in the
interest of justice, the proceedings of criminal appeal should
be kept in abeyance, particularly, keeping in view the fact
that the appeal has been preferred against the ex-parte order
dated 13.02.2023, by the complainant and, simultaneously,
against this ex-parte order dated 13.02.2023, the applicants
also preferred a recall application for revocation of the ex-
parte order dated 13.02.2023.
11. Here a question arises as to whether the recall
application against the ex-parte order dated 13.02.2023, which
was passed on a complaint of respondent no.2, preferred
under Section 12 of the Protection of Women from Domestic
Violence Act, 2005, is maintainable or not, and in reference
to this, learned counsel for the applicants placed reliance
upon a judgment rendered by the Co-ordinate Bench of this
Court in the case of Nirmal Jeet Kaur versus State of
Uttarakhand and others, decided on 16.08.2012 in a petition
preferred under Section 482 Cr.P.C, reported in 2012 SCC,
OnLine, Uttarakhand 335, and by placing reliance on the said
judgment, the learned counsel for the applicants submits that
in view of the observation, as made in para 8 of this
judgment, the recall application is maintainable. The
observation of Co-ordinate Bench of this Court, in the said
judgment, particularly, in para 8, is being extracted here-in
below:-
"The question, before Court, is that whether in the light of expression
"its own procedure for proposal of an application", can the Magistrate
recall its order passed under section 23 or not. Certainly said
expression does not give the Magistrate power to pass arbitrary orders
or to pass such an order which is against the known basic principles of
judicial procedure. In the opinion of this Court what afor said
expression authorities the Magistrate is that he can pass such an order
which are in consonance of the basic principles of judicial procedure. It
is pertinent to mention here that proceeding based on an application
under section 12, the Protection of Women from Domestic Violence
Act, 2005 are not the proceeding of trial of an offence. Rather such
proceedings are quasi civil in nature, like the one under section 125 of
Cr. P.C. If we look in the Code of Civil Procedure, 1908, we find that
there is provision under Rule 7 of Order IX of the Code which
empowers of the Court to set aside the order directing to proceed ex
parte. Under Rule 13 of Order IX of the Code Trial Courts have powers
to set aside the ex parte decree on sufficient cause being shown by the
defendant. Similarity under the Code of Criminal Procedure, 1973, in
respect of proceedings under section 125 of Cr. P.C., there is proviso to
sub-section (2) of section 126 which empowers the Magistrate to recall
an ex parte order. As such setting aside of ex parte order by the
Magistrate under the Protection of Women from Domestic Violence
Act, 2005 cannot be said to be arbitrary or against the basic principles
of judicial procedure, particularly when sub-section (2) of section 28 of
the Act, provides that nothing in sub-section (1) shall prevent the
Court from laying down its own procedure for disposal of an
application under section 12 or sub-section (2) of section 23."
12. Apart from this, learned counsel for the applicants
submits that even otherwise, in view of Section 25 of the
Protection of Women from Domestic Violence Act, 2005, the
application, moved for revocation of ex-parte order dated
13.02.2023, is maintainable.
13. Undisputedly, a recall application has been moved by
the applicants for revocation the ex-parte order dated
13.02.2023 and the said application, accordingly to the
learned counsel for the applicants, was heard at length by the
Court below on 11.10.2023 and 18.11.2023, but the same has
yet not been decided.
14. Learned counsel for the applicants submits that the
proceedings of the appeal preferred by respondent no.2
against the ex-parte order dated 13.02.2023, for enhancement
of the compensation and alternative accommodation, are still
going on and if the proceedings of this Criminal Appeal is
expedited, certainly, the purpose of filling a recall
application would be frustrated.
15. Learned counsel for the applicants submits that till the
disposal of the recall application, the proceedings of the
Criminal Appeal No.15 of 2023, should be kept in abeyance.
16. Learned counsel for the applicants submits that, in fact,
the respondent no.2 never disclosed this fact before the Court
concerned that the divorce suit was already decreed on
31.05.2022, against which, a regular first appeal has been
preferred.
17. Mr. M.A. Khan, learned AGA for the State, who
appears on behalf of respondent no.1, fairly submits to this
Court that the reliefs, as sought in both these petitions,
appear to be innocuous.
18. Having considered the facts and circumstances of the
case and after hearing the arguments of learned counsel for
the parties, learned 2nd Additional Civil Judge/Judicial
Magistrate, Haldwani, District Nainital is directed to decide
the Miscellaneous Criminal Case No. 218 of 2023, Sandeep
Kumar and others versus Smt. Bunty alias Ishita Pathak and
others, within a period of two months from the date of
production of certified copy of this order.
19. It is made clear that till the disposal of Miscellaneous
Criminal Case No. 218 of 2023, the further proceedings of
Criminal Appeal No.15 of 2023 Smt. Bunti alias Ishita versus
Sandeep Kumar Pathak, pending in the Court of
1stAdditional District and Sessions Judge, Haldwani, District
Nainital shall remain suspended till the disposal of
Miscellaneous Criminal Case No. 218 of 2023.
20. In view of the above observations, both the
applications, preferred under Section 482 Cr.P.C, are
disposed of finally.
__________________
RAKESH THAPLIYAL, J.
Reena Bisht
