JUDGMENT Brijesh Kumar, J.-Leave granted. 2. The order, dismissing a writ petition, preferred by the present appellant in the High Court, has been impugned by means of the appeal in hand. The VIth Additional District Judge. Muzaffarnagar passed an order dated 30.10.1999 in revision, setting aside the order of allotment in favour of the appellant and releasing the accommodation in question, in favour of the respondent-landlady on the ground of her bona fide requirement. A learned Single Judge of Allahabad High Court by order dated 16.11.1999 upheld the order passed in revision. 3. The dispute as evident, relates to the letting and release of the accommodation in question governed by the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, hereinafter to be referred to as the Act . It appears that one Bankey Lal was the owner and landlord of House No.179/18, Sanjay Marg, South Bhopa Road Muzaffar Nagar. The ground floor of the house was in the tenancy of one Trilok Chand who vacated the premises and the appellant moved an application for its allotment under Section 16(1)(a) of the Act. This petition was registered as Suit No.63/89. Bankey Lal, the landlord of the house died during pendency of the proceeding for allotment. The appellant moved for substitution of the heirs of late Bankey Lal and brought on record his two sons namely Ravi Mohan Bhatnagar and Mohan Bhatnagar. They did not turn up to contest the application for allotment though served. By order dated 3.8.1990 the Rent Control and Eviction Officer allotted the premises to the appellant who also entered into possession of the same. Later, however, Ravi Mohan Bhatnagar, son of late Bankey Lal who was brought on record as one of his heir, filed a revision No.19 of 1990, challenging the order of allotment on the ground that late Shri Bankey Lal had also left behind another son Shri Hari Mohan and a daughter Smt. Swaraj as his heirs but they had no notice of the proceedings. Needless to mention that the revisionist, namely, Ravi Bhatnagar, though served had not taken any such or other objection before allotment of the accommodation to the appellant. 4. Later on, however, Hari Mohan and Mohan Bhatnagar namely, the other two sons of late Shri Bankey Lal, as a consequence of settlement, in arbitration proceedings, undisputedly became owners of the house in question. 4. Later on, however, Hari Mohan and Mohan Bhatnagar namely, the other two sons of late Shri Bankey Lal, as a consequence of settlement, in arbitration proceedings, undisputedly became owners of the house in question. That is to say Ravi Mohan Bhatnagar was now left with no interest in the property at all so as to be entitled to prosecute revision filed by him against allotment order. His brothers also never at any stage showed any interest against allotment in favour of the appellant. A further development which needs to be noted is that Hari Mohan Bhatnagar and Mohan Bhatnagar transferred the property on 15.9.1994 in favour of Smt. Shakuntala Gaur, the respondent who was already a tenant of the first and second floors of the house. She moved an application No. 83A in revision RCA No.19 of 1990 for being impleaded as revisionist No.2 along with Ravi Mohan Bhatnagar. Ravi Mohan Bhatnagar on the other hand moved an application and rightly, not pressing his RCA No.19 of 1990. 5. The Addl. District Judge, however by order dated 15.1.1996 allowed the RCA No. 19 of 1990 filed by Ravi Mohan Bhatnagar and set aside the order of allotment dated 3.8.1990 which was passed in favour of the appellant, on the ground that Hari Mohan Bhatnagar and Smt. Swaraj, other two heirs of Bankey Lal had no notice of the proceedings of allotment. The Addl. District Judge also seems to have allowed the application moved by the respondent for being impleaded as revisionist No.2 but no order appear to have been passed on the application of Hari Mohan Bhatnagar not pressing the revision. The case was remanded to the Rent Control and Eviction Officer to dispose of the same on merits. A writ petition preferred against the order dated 15.1.1996, it is informed had been rejected. 6. During the proceedings before the Rent Control and Eviction Officer, after the remand, the respondent moved an application dated 15.2.1996 for release of the accommodation in her favour saying that she bona fide required the same. The case was decided by order dated 27.3.1997 passed by RCEO in Suit No.63 of 1989, recording a finding that the respondent did not have bona fide need of the accommodation and dismissed the Revision and her application for release moved in Suit No.63 of 1989. The case was decided by order dated 27.3.1997 passed by RCEO in Suit No.63 of 1989, recording a finding that the respondent did not have bona fide need of the accommodation and dismissed the Revision and her application for release moved in Suit No.63 of 1989. As a consequence thereof an order of allotment was again passed on 31.3.1997 by the Rent Control and Eviction Officer. 7. The respondent preferred two revisions No.4 of 1997 and 5 of 1997 in the Court of the Addl. District Judge, impugning the orders dated 27.3.1997 and 31.3.1997. The learned Addl. District Judge allowed the revisions, setting aside the order of allotment dated 31.3.1997 passed in favour of the appellant and released the accommodation in favour of the Respondent. The writ petition preferred against the order passed in the two revisions mentioned above was dismissed by order dated 16.11.1999 which is under challenge in this appeal. 8. Learned counsel for the appellant apart from raising other grounds has urged that scope of revision under Section 18 of the Act is limited and reappraisal of evidence for recording findings of fact is not permissible. Hence, the order of revisional court suffers from infirmity of exceeding its jurisdiction in exercise of its revisional power and the High Court erred in not taking note of the same and further submits that the application for release of the accommodation moved by the respondent could not be entertained. 9. Before dealing with questions raised, it may be better to peruse the provisions as contained under Sections 16 and 18 of the Act which read as follows: "16. 9. Before dealing with questions raised, it may be better to peruse the provisions as contained under Sections 16 and 18 of the Act which read as follows: "16. Allotment and release of vacant building.-(1) Subject to the provisions of the Act, the District Magistrate may by order:- (a) require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land alone, to any person specified in the order (to be called an allotment order) ; or (b) release the whole or any part of such building, or any land appurtenant thereto, in favour of the landlord (to be called a release order); [Provided that in the case of a vacancy referred to in sub-section (4) of Section 12, the District Magistrate shall given an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a)]. 2. No release order under clause (b) of sub-section (1) shall be made unless the District Magistrate is satisfied that the building or any part thereof or any land appurtenant thereto is bona fide required, either in its existing form or after demolition and new construction, by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purpose or for purposes of any profession, trade, calling or where the landlord is the trustee of a public charitable trust, for the objects of the trust, or that the building or any part thereof is in a dilapidated condition and is required for purposes of demolition, and new construction, or that any land appurtenant to it is required by him for constructing one or more new buildings or for dividing it into several plots with a view to the sale thereof for purposes of construction of new buildings. .................... .................... (a) .................... (b) in the case of business purposes, the names of proprietors or partners of the business; (c) the date, which shall not be earlier than seven days after the date of the order, by which the landlord shall deliver possession to the allottee; (d) such other particulars as may be prescribed. .................... .................... .................... .................... .................... .................... .................... (a) .................... (b) in the case of business purposes, the names of proprietors or partners of the business; (c) the date, which shall not be earlier than seven days after the date of the order, by which the landlord shall deliver possession to the allottee; (d) such other particulars as may be prescribed. .................... .................... .................... .................... .................... .................... (7) Every order under this section section, shall subject to any order made under Section 18, be final. (8) The allottee shall, subject to the provisions of sub-section (5) and (9) of Section 18, be deemed to become tenant of the building from the date of allotment or where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continued to occupy the building, from the date on which he obtain possession. 18. "Appeal against order of allotment or release.-(1) No appeal shall lie from any order under Section 16 or Section 19, whether made before or after the commencement of this section, but any person aggrieved by a final order under any of the said sections may within fifteen days from the date of such order prefer a revision to the District Judge on any one or more of the following grounds, namely:- (a) that the District Magistrate has exercised a jurisdiction not vested in him by law; (b) that the District Magistrate has acted in exercise of his jurisdiction illegally or with material irregularity. (2) The revising authority may confirm or rescind the final order made under sub-section (1) or may remand the case to the District Magistrate for rehearing and pending the revision may stay the operation of such order on such terms, if any, as it thinks fit. Explanation :-The power to rescind the final order under this sub-section shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allottee mentioned in the order under revision. Explanation :-The power to rescind the final order under this sub-section shall not include the power to pass an allotment order or to direct the passing of an allotment order in favour of a person different from the allottee mentioned in the order under revision. (3) Where an order under Section 16 or Section 19 is rescinded, the District Magistrate shall on an application being made to him on that behalf, place the parties back in the possession which they would have occupied but for such order or such part thereof as has been rescinded, and may be that purpose use or cause to be used such force as may be necessary." 10. From a perusal of the provisions quoted above namely, Sections 16 and 18 of the Act, it is clear that a person is entitled to make an application under sub-section (1)(a) of Section 16 for allotment in respect of a building which has or is about to fall vacant. Under clause (1) (b) the landlord is entitled to move an application for release of the accommodation Sub-section (7) of Section 16 provides that every order passed under Section 16 shall be final subject to any order passed under Section 18 of the Act. The order passed under Section 16 can be interfered with in exercise of revisional jurisdiction under Section 18 of the Act in cases where the District Magistrate had exercised jurisdiction not vested or has failed to exercise the jurisdiction or has exercised it illegally or with irregularity. Under sub-s. (2) of Section 18, the revisional authority is entitled to confirm or rescind or remand the case to the District Magistrate for re-hearing. 11. The revisional court while dealing with Revisions No.4 & 5 of 1999 held that the position of the appellant was that of a prospective allottee vis-à-vis application for release moved by the respondent-landlady. The revisional court placing reliance upon certain decisions of the High Court on the point, held that a prospective allottee has no right to file objection or to be heard against an application moved by the landlord for release and that the release application has to be heard and disposed of first. The revisional court placing reliance upon certain decisions of the High Court on the point, held that a prospective allottee has no right to file objection or to be heard against an application moved by the landlord for release and that the release application has to be heard and disposed of first. Therefore, the revisional court further held that the RC & EO erred in considering the application of the appellant for allotment and in not taking into account the affidavit filed by the landlady making averments regarding her bona fide need for the accommodation. So far the question of scope of the power of the revisional court under Section 18 of the Act is concerned, the revisional court relying upon the decisions reported in 1981 ARC 34- Lokesh Kumar Dwivedi versus IInd Addl, District Judge, Lucknow 1994 AIR (2) 107- Mahkar Singh versus VIth Addl. District Judge, Meerut and 1996 (1) ARC 505- Taukhid Khan versus Special Judge, Nainital held that in appropriate cases the revisional court has power to pass an order of release of the accommodation in favour of the landlord instead of remanding the matter. Thus holding that the petitioner being in a position of prospective allottee had no right to be heard in the matter of release of the accommodation in favour of the landlord. On consideration of the affidavit of the landlady the revisional court found that her requirement was bona fide thus passed an order of release of accommodation in her favour. 12. In the writ petition the High Court found the appellant was rightly treated as a prospective allottee and the need of the landlady having been found to be bona fide by the revisional court, it committed no error in releasing the accommodation in her favour. So far the legal position is concerned, we feel that there is hardly any doubt that a prospective allottee shall have no right to oppose an application for release moved by the landlord. The need of the landlord is bona fide or not is a matter for satisfaction of the District Magistrate and on being so satisfied, an order of release can be passed. The Release application is to be disposed of first before passing an order on the application for allotment. 13. In the present case we find that the position is very peculiar which has not been properly appreciated in correct perspective. The Release application is to be disposed of first before passing an order on the application for allotment. 13. In the present case we find that the position is very peculiar which has not been properly appreciated in correct perspective. Undisputedly the accommodation in question had fallen vacant and the appellant had applied for its allotment but in the meantime landlord Bankey Lal died. The appellant brought on record two sons of late Bankey Lal as his heirs and legal representatives viz. Ravi Mohan Bhatnagar and Mohan Bhatnagar but they filed no objection and other of allotment was passed on 3.8.1990 in Suit No.63/89. The appellant also got possession of the accommodation. Later however same Ravi Mohan Bhatnagar who was substituted and had chosen not to file any objection though served, preferred a revision on the ground that Hari Mohan Bhatnagar and Smt. Swaraj, the other two heirs of Bankey Lal had no notice although they had not raised any such objection. Later Hari Mohan Bhatnagar and Mohan Bhatnagar became owners and landlord of the house on March 20, 1994. Even after becoming the landlord of the accommodation, Hari Mohan Bhatnagar and Mohan Bhatnagar raised no objection regarding allotment and tenancy of the appellant. Later they sold the property in favour of the respondent on 15.9.1994. Ravi Mohan Bhatnagar moved application for not pressing Revision No.19 of 1990 filed by him against allotment in favour of the appellant. The position that emerges is that respondent was not the landlady when the accommodation was allotted to the appellant in 1990 nor on March 20, 1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became landlords thus on Ravi Mohan Bhatnagar s interest in property as an heir of Bankey Lal coming to an end, the revision No. 19 of 1990 filed by Ravi Mohan Bhatnagar even if it was pending, it was an inconsequential and infructuous petition having no life so as to be prosecuted by him. The respondent had purchased the house from Hari Mohan and Mohan Bhatnagar and not from Ravi Mohan Bhatnagar who obviously was left with no right or interest in the property. She moved an application for release thereafter on 15.2.96. It may be particularly noted that the order of allotment passed on 3.8.1990 was in operation on March 20, 1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became owner of the accommodation. She moved an application for release thereafter on 15.2.96. It may be particularly noted that the order of allotment passed on 3.8.1990 was in operation on March 20, 1994 when Hari Mohan Bhatnagar and Mohan Bhatnagar became owner of the accommodation. Between Bankey Lal and his heirs including Ravi Mohan Bhatnagar and the landlady-Respondent there stood her vendors having ownership rights of their own which they transferred to her. She had no connection with Bankey Lal or his heirs so as to be entitled for moving an application under Section 16(1)(b) for release of accommodation already allotted to the appellant before her predecessor in interest had acquired rights in property exclusively. The appellant therefore could not be treated as a prospective allottee nor the respondent as owner subsequent to allotment could take up Revision filed by Ravi Mohan Bhatnagar whose interest as an heir of Bankey Lal had ceased on the property vesting in Hari Mohan and Mohan Bhatnagar by virtue of arbitration. 14. In such a situation as indicated above the landlady namely the respondent in case had any bona fide requirement of the accommodation could only move for eviction of the appellant under the provisions of Section 21 of the Act. Section 21 reads as under: "21. 14. In such a situation as indicated above the landlady namely the respondent in case had any bona fide requirement of the accommodation could only move for eviction of the appellant under the provisions of Section 21 of the Act. Section 21 reads as under: "21. Proceedings for release of building under occupation of tenant.-(1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely- (a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any members of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction: Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a) unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years: .................... ...................." 15. Perhaps due to the hurdle in the way of the landlady for moving an application for eviction under Section 21(1)(a) for period of three years by virtue of proviso, she tried to find a short cut to be impleaded as one of the revisionists in RCA No. 19 of 1990 in which the Respondent Ravi Mohan Bhatnagar was not left with any kind of interest nor even semblance of any right to challenge the allotment. 16. In the facts and circumstances indicated above the Revisional Court and the High Court both erred in considering the appellant as a "Prospective allottee". His position was more akin to an allottee in possession. 16. In the facts and circumstances indicated above the Revisional Court and the High Court both erred in considering the appellant as a "Prospective allottee". His position was more akin to an allottee in possession. The only course open to the Respondent was to move under Section 21(1)(a) of the Act for his eviction. 17. The release application under Section 16(1)(b) of the Act moved by the Respondent was misconceived. The order passed on the infructuous proceedings namely Revision No.19/90 would be inconsequential and shall not enure any benefit either to Ravi Mohan Bhatnagar who had filed the revision nor to the respondent who moved application for impleadment as a revisionist. Initially also Ravi Mohan Bhatnagar had no justifiable reason to file the revision once having failed to file objections to the allotment application in the year 1990 more particularly on the ground that notice was not served upon some other heirs of late Bankey Lal. Whatever right, if at all he had to file the revision as one of the heirs of Bankey Lal, he had lost the same after the property came to be owned by Hari Mohan Bhatnagar and Mohan Bhatnagar on March 20, 1994 by virtue of arbitration award in their favour. So far respondent is concerned, her impleadment as one of the revisionists rightly or wrongly would also be inconsequential since she had purchased the property from Hari Mohan and Mohan Bhatnagar as the owners and predecessor in interest in the property and not from heirs of late Bankey Lal. It is thus clear that there is no reason to treat the appellant as prospective allottee. The bona fide requirement of the respondent could not be considered in the infructuous proceedings of the Revision 19/1990. The order passed in infructuous proceedings is inconsequential and ineffective. She could not be permitted to do something indirectly which was impermissible directly, in view of proviso to sub-section (1) of Section 21 of the Act namely, she could not get the premises vacated on the ground of her bona fide requirement within three years of purchasing the property. 18. In the result the appeal is allowed and the order of the High Court as well as of the revisional court are set aside and that of the Rent Control & Eviction Officer is restored. 18. In the result the appeal is allowed and the order of the High Court as well as of the revisional court are set aside and that of the Rent Control & Eviction Officer is restored. In case the appellant has been dispossessed from the premises in pursuance of the orders passed by the revisional court or the High Court, the Rent Control and Eviction Officer will take steps to restore possession of the premises to him. The appellant on getting possession of the premises will pay to the respondent-landlady arrears of rent for the period he was in occupation of the premises, within three months. It will however be open to the respondent if so advised to move any appropriate application as may be permissible under the law for eviction of appellant. There shall, however, be no order as to costs. (N.K.R.) Appeal allowed accordingly. ************* ARTICLES APPEARANCE BY ATTORNEY PERMISSIBLE IN PROCEEDINGS UNDER SECTION 13-B(2) OF THE HINDU MARRIAGE ACT, 1955 *Vinay Thakur Section 13-B(2) was inserted in the Hindu Marriage Act, 1955 by the Amendment Act No.68 of 1976. The object of this provision was that parties should be in a position to obtain a divorce on the ground of mutual consent. The ground on which divorce could be obtained was that parties have been living separately for the prescribed period and that they have not been able to live together and that they had mutually agreed that the marriage should be dissolved. Section 13-B(2) of the said Act reads as follows: "13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." The question that is sought to be discussed in the present essay is whether presence of parties is indispensable at the time of second motion provided under Section 13-B(2) of the Act. There may be situations/contingencies where a party/both parties to a divorce petition after having made the preliminary statements at the time of the first motion, may not be physically available for making statement once again at the time of second motion, for the purpose of satisfying a matrimonial court about fulfilment of conditions laid down in Section 13B(2) of the Act. The said provision provides that a court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce. At times, it may be that a party is not able to appear in person before a court due to being out of station, out of country, being bed-ridden or hospitalized or other indispensable pre-occupation. In such situations, is it permissible under the law that such party concerned may execute a Power of Attorney in favour of either a counsel or a relation or a friend, and such duly appointed Attorney may be authorised to do all acts, deeds and things necessary in order to obtain a decree for divorce? This question directly came up for consideration before Delhi High Court in Neelam Chopra v. Anil Chopra1 where Hon'ble Mr. This question directly came up for consideration before Delhi High Court in Neelam Chopra v. Anil Chopra1 where Hon'ble Mr. Justice B.N. Kirpal (as his Lordship then was, now Hon'ble Judge of the Supreme Court) held that insistence on personal appearance of parties is unjustified, and if both parties, by way of affidavit or through counsel, state that they were married, and are able to produce the proof of marriage, and that they have been living separately and have not been able to live together for the prescribed period, then there would be no reason why the court should not record its satisfaction as envisaged by Section 13B(2) and to pass a decree of divorce. In that case, after making the statement at the time of the first motion, the petitioner-wife got the job outside India and thus, she had gone out of India. She thus could not appear in person before the matrimonial court at the time of the second motion due to her pre-occupation outside India, and, therefore, she executed the Power of Attorney in favour of her counsel and also signed the affidavit testifying to the execution of the said Power of Attorney. The trial court observed that in its opinion, it would be preferable that both the parties should appear in person for obtaining divorce by mutual consent, and it, therefore, directed personal appearance of both the parties. Against the said order, the petitioner/wife moved the High Court in revision. The High Court observed that for arriving at the satisfaction as envisaged under Section 13-B(2) of the Act, there was no need for the parties to appear in person, and such satisfaction could be arrived at by the court on the basis of affidavit or through Attorney authorised to make a statement testifying to the correctness of the contents of the petition. Reference was made to the decision of the Calcutta High Court. The Division Bench of the High Court of Calcutta (P N. Mookerjee and A.C. Gupta, JJ.) in Annalie Prashad v. Romesh Proshad2though dealing with the Special Marriage Act, 1954 but with a similar situation, held that personal appearance or presence of parties before the court was not necessary and that affidavit-evidence would be permissible. In that case, the parties had filed the petition for divorce by mutual consent under the provisions of Special Marriage Act, 1954. In that case, the parties had filed the petition for divorce by mutual consent under the provisions of Special Marriage Act, 1954. During the course of the proceedings, the application had been filed by the appellant-wife for being allowed to give evidence by affidavit. The said application had not been opposed by the respondent-husband. However, the trial court was of the opinion that having regard to the language of Section 28(2) of the Special Marriage Act, 1954 under which the proceedings had been filed for divorce by mutual consent, affidavit-evidence could not be allowed and accordingly rejected the application of the appellant-wife. The trial court was of the opinion that Section 28(2) required the court to be satisfied after "hearing the parties" and that the parties should, therefore, be present personally in court. The Division Bench negated the view taken by the trial court and held that Section 40 of the said Act attracted the applicability of the provisions of the Code of Civil Procedure, and there was nothing in the statute or in the rules conflicting with the view that affidavit-evidence was permissible. The impugned order was, therefore, set aside and the appellant's application for leading evidence by affidavit was allowed. The Division Bench of the High Court of Andhra Pradesh (P. Venkatarama Reddi and D.H. Nasir, JJ.) in Mrs. Padmakiran Rao v. Mr. B. Venkateramana Rao3 held that 'Hearing' does not necessarily mean that both parties have to be examined. The said word 'hearing' is often used in a broad sense which need not always mean personal hearing. The facts of the case were that both the spouses had filed the joint petition under Section 13-B(2) of the Act. The said petition had been dismissed on the ground that at the time of the second motion, the husband was away to the United States of America and was not personally present before the Court. The appeal against the said order had been preferred to the High Court. The respondent-husband had been residing in the United States since 1987, being employed there. The marriage had taken place in 1992 and within a few days after the marriage, there was disruption in marital life and estrangement between the parties. The marriage had not been consummated. The respondent-husband left for the United States after five days of the marriage. The respondent-husband had been residing in the United States since 1987, being employed there. The marriage had taken place in 1992 and within a few days after the marriage, there was disruption in marital life and estrangement between the parties. The marriage had not been consummated. The respondent-husband left for the United States after five days of the marriage. One year thereafter, the joint petition was filed seeking divorce on the basis of mutual consent. The first motion was cleared and the case was posted for inquiry after six months. At the time of the second motion, the appellant-wife examined herself and she reiterated her desire to get divorce. However, the respondent-husband could not be present as he had been residing in the United States. The respondent, however, filed his duly notarised affidavit and made it clear that the marriage had irretrievably broken down and there were no mutual obligations or claims against each other and sought an order dissolving the marriage. The trial court took the view that both the parties to the marriage should necessarily be present in the Court for examination, and the filing of affidavit will not be a substitute for that requirement. The trial court observed that unless the parties were personally present, it would be difficult for the Court to assess whether they had changed their mind since the date of filing the petition. The Division Bench observed that this was not the correct view of the law. The High Court observed that in any case, the evidence of one of the parties i.e., the appellant-wife had been recorded by the court and, therefore, even if the word 'hearing' is construed in a literal sense, that requirement must be deemed to have been satisfied in view of the examination of the appellant-wife. On the husband's side, there was evidence in the form of an affidavit which can be legitimately taken into account in view of Order XIX Rule 1 CPC. The High Court further observed that it was not as if the affidavit has been doubted or the other party wanted to cross-examine the deponent of the affidavit. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the court should not act on the affidavit field by one of the parties. When there are no suspicious circumstances or any particular reason to think that the averments in the affidavit may not be true, there is absolutely no reason why the court should not act on the affidavit field by one of the parties. The High Court observed that the trial Court fell into error of law in observing that it cannot look into the affidavit at all. There was also a valid reason for non-attendance of the respondent in the Court. The impugned order was thus set aside and the appeal was allowed and the marriage between the parties was declared to have been dissolved with effect from the date of the judgment of the High Court. In the recent judgment by the High Court of Delhi (S.N. Kapoor, J.) in Shri Sandeep Singhal v. Mrs. Smitha Nair4, the petition for divorce under Section 13-B of the Act was dismissed by the trial court for failure of one of the parties to appear before the court for purposes of reconciliation. The facts were that after the petition for divorce on the ground of mutual consent had been jointly moved in the trial court, the wife left for the USA as she had taken admission there in a computer course. Since she could not present herself personally, her father acting as her Attorney appeared and made the statement on her behalf. However, the trial court insisted on the personal appearance of both the parties. Since the wife could not come from the USA to attend the court proceedings, the trial court dismissed the petition with the option to the parties to move again after expiry of six months when both of them could come before court for reconciliation. The High Court of Delhi set aside the said order, observing that pragmatic approach has to be followed in matters like the present one in the days of career-oriented and self-centered approach to life on one hand and days of superfast communication by way of fax and internet meetings. It was observed that a court ought to make an attempt to find out the circumstances why a party could not appear personally and why it would be a futile exercise to insist on the presence of the parties for the purpose of reconciliation. It was observed that the learned trial court probably went too far in dismissing the petition. It was observed that a court ought to make an attempt to find out the circumstances why a party could not appear personally and why it would be a futile exercise to insist on the presence of the parties for the purpose of reconciliation. It was observed that the learned trial court probably went too far in dismissing the petition. Instead of dismissing the petition, it could have adjourned the matter and could have tried to have requisite information directly from the respondent on an affidavit sworn before Indian counsel in the USA to find out whether it is possible to reconcile the matter or not. The High Court also observed that one has to appreciate that all rules of procedure are handmaids of justice for fair implementation of any rule of law; not literal but liberal approach has to be followed which advances purpose and object of any provision of an enactment without hitting at the purpose and object of another provision of the same Act. The High Court observed that consistently with the nature and circumstances of the case, personal presence is neither a mandatory requirement nor it is absolutely necessary as exceptions have been carved out in the proviso to Section 23(2) of the Act. It was observed that the word "possible" used in Section 23(2) of the Act is to be interpreted in a pragmatic and practical sense. The court must insist on personal appearance unless circumstances indicate that the insistence to procure attendance of any party is patently futile and may be causing more harm than bringing about reproachment; instead of helping in arriving at a positive solution, it is likely to cause avoidable harassment and bitterness, and the court has, therefore, to be circumspect in this regard and see as to what is practically possible in a given situation. Recently, a similar situation arose in the proceedings for divorce by mutual consent before the matrimonial court at Delhi. The parties were present before the court at the time of the first motion and made their statements whereupon the court was satisfied and granted them the statutory time to come up for a second motion. Recently, a similar situation arose in the proceedings for divorce by mutual consent before the matrimonial court at Delhi. The parties were present before the court at the time of the first motion and made their statements whereupon the court was satisfied and granted them the statutory time to come up for a second motion. During the pendency of the second motion proceedings, the husband, being the Commercial Pilot left the country for the United States of America for completion of his training with the consequence that he was not personally present before the court at the time of the second motion for grant of decree of divorce by mutual consent. However, he had executed the duly notarised Power of Attorney in favour of his father authorising him to do all acts, things and deeds in respect of the proceedings for obtaining a decree of divorce on the ground of mutual consent. The matrimonial court allowed the Attorney to make the statement on behalf of the boy who was out of the country for the reasons stated above. The matrimonial court, after being satisfied with the fulfilment of the conditions as provided under Section 13-B(2) of the Act, allowed the prayer for divorce and granted the decree for divorce by mutual consent. ****************** PRELIMINARY ENQUIRY PERMISSIBLE PRECEDING REGISTRATION OF FIR IN A COGNIZABLE OFFENCE **P.R. Thakur Section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') prescribes as under: "154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence." The perusal of the abovesaid provision shows that every information pertaining to commission of a cognizable offence shall be reduced to writing by the police and the said information shall be signed by the informant and further that the substance of such information shall be recorded in the book called Daily Diary Register. The oft-quoted judgment on the subject is the cause celebre in State of Haryana and others v. Bhajan Lal and others1. The Supreme Court (S. Ratnavel Pandian and K Jayachandra Reddy, JJ.) speaking through Pandian, J. held in the paragraph 31 of the said judgment that the legislature in its collective wisdom has carefully and cautiously used the expression "information" in Section 154(1) of the Code, without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" have been used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in the previous two Codes of 1861 and 1872 was deleted and in that place, the word 'information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973. An overall reading of the Codes makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence. In the paragraph 32 of the said judgment, the Supreme Court observed that it was manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The Division Bench of Delhi High Court (Y.K. Sabharwal J., as his Lordship then was, now Hon'ble Judge of the Supreme Court and S.C. Jain J.) in Kuldip Singh v. State2 held, after reference to the judgment of the Supreme Court in State of Haryana v. Bhajan Lal3 that the police under Section 154(1) of the Code has a statutory duty to register a cognizable offence. After registration of the case, commencement of investigation is within the exclusive domain of police and the courts have no power to stifle the investigation so long as it proceeds in compliance with the provisions relating to investigation. After registration of the case, commencement of investigation is within the exclusive domain of police and the courts have no power to stifle the investigation so long as it proceeds in compliance with the provisions relating to investigation. The question that came up for consideration before the Division Bench was: "Can a police officer withhold the registration of a case and start an enquiry to find out whether the information disclosing commission of cognizable offence is reliable, genuine or otherwise and later refuse to register a case on the ground that the enquiry has shown that the information is not genuine, reliable or credible?" The Division Bench held that the Supreme Court in Sirajuddin v. State of Madras4 (infra) and The State of U.P. v. Bhagwat Kishore Joshi5 (infra) had not held that when an information about the commission of cognizable offence is given to an officer in charge of a Police Station, he can, without registration of a case, embark upon an enquiry and refuse registration as a result of the said enquiry. The Court held that where information itself does not disclose commission of cognizable offence, no duty is cast upon the police to register the case. If the information is vague, the police can say that information does not disclose commission of offence and thus registration of case may be refused or withheld, and in the meantime, a preliminary enquiry may be held to find out about the commission of a cognizable offence. The Division Bench observed that the Supreme Court in Bhajan Lal (supra), before discussing the submission in regard to quashing of the FIR, first considered in the forefront the legal principles governing the registration of cognizable offences and the power of investigation and it was clearly held that police officer has a statutory duty to register First Information Report on information being given disclosing commission of cognizable offence. The Division Bench further observed that under the scheme of the Code, on registration of a case under Section 154(1) of the Code, irrespective of whether the investigation is embarked upon or not, the matter has to be placed before an independent and impartial forum of Judiciary. When it is so placed, various options are open to the Judicial Officer. He may concur with the Police and may make orders closing the case. When it is so placed, various options are open to the Judicial Officer. He may concur with the Police and may make orders closing the case. The Judicial Officer may not be satisfied with the investigation or may not be satisfied with the action of police officer in not investigating the crime in exercise of power under clause (b) of proviso to Section 157(1) of the Code, and in these eventualities, the Judicial Officer can direct further investigation. To give power to the Police not to register the crime of a cognizable nature and instead proceed with an enquiry and later refuse registration, would have the effect of the matter never coming to gaze of judicial scrutiny. This is not contemplated by the Code. The Division Bench further held that Rule 24.4 of Punjab Police Rules, 1934 read with Sections 157 and 158 of the Code make it abundantly clear that on registration of a case, where a Police officer has reason to suspect that the alleged offence has not been committed, he may refuse to embark upon the investigation. The investigation is the prerogative of the Police. But that is subject to the control of the judiciary as spelt out from the provisions of the Code from Sections 156 to 173. Rules cannot override the statutory provisions, and rules cannot be given effect to in violation of the Act. The Division Bench further observed that the conferment of absolute and uncanalised discretion to the police to register a cognizable offence or not, would be violative of equality clause enshrined in our Constitution. The Code vests power in Judiciary to control the discretion of the police. The judiciary will remain unaware in absence of recording of first information report. Whenever police officer after recording of the First Information Report has a reasonable doubt about the commission of a cognizable offence, he has power not to proceed with the investigation but that is subject to check by judiciary. There is rapid increase of custody deaths and deaths during encounters with law enforcing agency. Whenever police officer after recording of the First Information Report has a reasonable doubt about the commission of a cognizable offence, he has power not to proceed with the investigation but that is subject to check by judiciary. There is rapid increase of custody deaths and deaths during encounters with law enforcing agency. It is the duty of all organs including Judiciary to protect human rights and, therefore, it is necessary to provide safeguards for early recording of the crime and control of police by judiciary which would be negated if it is left to the police to decide in which case to register the crime on disclosure of commission of cognizable offence and in which defer it pending enquiry. The Division Bench further observed that the legal position was clear that on information being laid before the police about the commission of a cognizable offence, the police has no option but to register the case and then to proceed with investigation of the case under the provisions of Chapter XII of the Code. The police can also decide not to investigate in terms contemplated by Section 157(1) of the Code. The police has no right to refuse registration of a case on information being laid before it about commission of cognizable offence and instead proceed with an enquiry and refuse registration as a result of the said enquiry. If it is left to be determined by the police to decide in which cases of disclosure of commission of cognizable offence it would first hold preliminary enquiry and then decide to register or not to register the case, it would also lead to delay in registration of the crime and in the meantime, the material evidence may not be available. The conduct of enquiry itself may entail a long period. There may be then challenge to the said enquiry. The enquiry prior to the registration of a case in a cognizable offence is not permissible in law. In Madhuresh v. CBI6, the Division Bench of Delhi High Court (M. Jagannadha Rao, C.J., as his Lordship then was and later Hon'ble Judge of the Supreme Court and Manmohan Sarin, J.) held that there was no prohibition in the Code to start a preliminary investigation before registering an FIR. In Madhuresh v. CBI6, the Division Bench of Delhi High Court (M. Jagannadha Rao, C.J., as his Lordship then was and later Hon'ble Judge of the Supreme Court and Manmohan Sarin, J.) held that there was no prohibition in the Code to start a preliminary investigation before registering an FIR. Reference was made to the judgment of the Supreme Court in State of UP v. Bhagwat Kishore Joshi7 wherein the question was whether there was any prohibition in the Code against starting a preliminary investigation before registering an FIR. The Bench (K. Subba Rao, Raghubar Dayal and J.R. Mudholkar, JJ.) speaking through Mudholkar J. stated: "... But the main object of investigation being to bring home the offence to the offender, the essential part of the duties of an investigating officer in this connection is, apart from arresting the offender, to collect all material necessary for establishing the accusation against the offender. Merely making some preliminary enquiries upon receipt of information from an anonymous source or a source of doubtful reliability for checking upon the correctness of the information does not amount to collection of evidence and so cannot be regarded as investigation. In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a Police Officer to make preliminary inquiries before registering an offence and making a full scale investigation into it." (emphasis supplied) Reference was also made to another judgment of the Supreme Court in P. Sirajuddin etc. v. State of Madras8 wherein the Bench (J.M. Shelat and G K Mitter, JJ.) speaking through Mitter, J. held: "Before a public servant, whatever be his status, is publicly charged with act of dishonesty which amounts to serious misdemeanour or misconduct of the type alleged in this case and before a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.... The means adopted no less than the ends to be achieved must be impeccable. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.... The means adopted no less than the ends to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to, the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter, the ordinary law of the land must take its course and further enquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report." Pandian J. in Bhajan Lal9stated that the court was in agreement with the views expressed by Mudholkar J. in Bhagwat Kishore Joshi10 and Mitter J. in Sirajuddin11. The Division Bench of Delhi High Court in Madhuresh12 thus held that the registration of an FIR is not a condition precedent for conducting a preliminary investigation as distinct from a regular investigation. In V.M. Singh v. State13, the Division Bench of the Delhi High Court (Devinder Gupta and K. Ramamoorthy, JJ.) observed that wherein information itself does not disclose commission of cognizable offence, no duty is cast upon the police to register the case. In Kuldip Singh14 it had been observed that if the information is vague, the police will be within its right to say that information does not disclose commission of offence and thus may refuse to register a case or withhold registration of a case and in the meantime, a preliminary enquiry may be held to find out commission of a cognizable offence. There was no prohibition under the Code in regard to conducting preliminary enquiry before registration of a case as held by the Supreme Court in Bhagwant Kishore Joshi15. The Division Bench also relied upon the decision of the Supreme Court in P. Sirajuddin16 wherein it had been held that there must be some suitable preliminary investigation by a responsible person before a public servant is publicly charged with an act of dishonesty and before a first information is lodged against him. The Division Bench observed that in that case, as a result of preliminary investigation carried out on the spot and in the light of the material placed before the police, an opinion was formed not to register an FIR since no cognizable offence had been made out In the recent decision in Sanjeev Kumar v. Commissioner of Police and others17 rendered by the Division Bench of Delhi High Court (B.A. Khan and V.S. Aggarwal, JJ.), after referring to the judicial precedents of the Supreme Court in Bhajan Lal18, Bhagwant Kishore Joshi19 and P. Sirajuddin20 concluded in the capsule summary incorporated in the paragraph 22 of the said judgment as follows: "22. From the aforesaid precedents it is clear that following conclusions can conveniently be drawn: (i) whenever it is brought in writing or otherwise that a cognizable offence has been committed in terms of the decisions in the case of Bhajan Lal (supra) a First Information Report should be recorded, (ii) if the information given is not clear or creates a doubt as to whether it discloses commission of a cognizable offence, some enquiry can precede before registration of the offence, (iii) in case of a complaint of such nature made against public servants, it is doubtful or similarly if it is found that ex facie there is some untruth in the same, an enquiry can be conducted before registration of the case, (iv) the enquiry need not partake that of an investigation. It only is a preliminary enquiry that can be held." In the aforesaid judgment, the petitioner by way of the writ petition sought a direction from the court for registration of a case under Section 326 IPC r/w Section 506 Part-II IPC as also under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It only is a preliminary enquiry that can be held." In the aforesaid judgment, the petitioner by way of the writ petition sought a direction from the court for registration of a case under Section 326 IPC r/w Section 506 Part-II IPC as also under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The police had conducted the preliminary enquiry and it had been found that there was little substance in the complaint of the petitioner. The High Court, therefore, was of the opinion that in such circumstances, it was unnecessary to invoke its extraordinary jurisdiction under Articles 226 and 227 of the Constitution for issuing a direction for registration of a case because no useful purpose would be served in that regard in the face of the facts on file. The Division Bench also referred to the decision of the Supreme Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India and others. 21 The Supreme Court (K. Ramaswamy and G.B. Pattanaik, JJ.) was dealing with a similar situation where police had not taken any action on the information relating to the commission of cognizable offence. The petitioner-Employees' Union wanted registration of the case against the Director of AIIMS for the offence punishable under 409 IPC. The Supreme Court rejected the said request and held that the complainant was not without a remedy in such a situation, and under Section 190 r/w Section 200 of the Code, it could lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. It he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. It he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. In the case before the Supreme Court, it was observed that the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. **************** Parallel Citations of other Journals : Ram Narayan Sharma v. Shakuntala Gaur, 2002(3) Supreme 632 : 2002(2) CCC 174 : 2002 (Supp. 1) JT 423 : 2002(1) RCR 564 : 2002(1) RCJ 247 : 2002(2) RCJ 247 : 2000(2) UJ (SC) 777 : (2002) 5 SCC 184 : 2002(2) RLR 16 : AIR 2002 SC 2204 00130