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2006 DIGILAW 472 (PAT)

Lata Devi v. Umesh Nandan Sharma

2006-05-17

NAVANITI PRASAD SINGH

body2006
Judgment 1. This case has been listed under the heading "To Be Mentioned" on my orders. 2. By order dated 5.5.2006 passed in this case, I had held that against an order passed by the Principal Judge, Family Court under the provisions of the Family Courts Act, 1984 (In short "the Act") with reference to Sec. 125 of Criminal Procedure Code (In short "Cr. PC"), the order being passed in exercise of jurisdiction under Cr.P.C, the remedy would be under Cr. PC. and not Civil Procedure Code (In short, "C.P.C."). In other words the appropriate remedy would be by filing a criminal revision. Liberty was then granted to the petitioners to convert the civil revision application into a criminal revision application by the said order. 3. Thereafter, another case being Civil Revision No. 2045 of 2005 came before me under similar circumstances. The same objection was raised. The learned Senior Counsel Mr. Wasi Akhtar appearing for the petitioner in the said case brought to my notice the provisions of the Act including Section 7(2)(a) and Sec. 19(4) of the Act thereof which were not brought to my notice in the earlier case. On perusal of those provisions, I held that the revision application is an application in terms of Sec. 19(4) of the Act and stricto senso is not a revision either under Sec. 115 of C.P.C. or Sections 397/401 of Cr.P.C. Accordingly, I held that the civil revision was maintainable noticing that my earlier view was not correct having been taken without reference to the statutory provisions. It is, in this view of the matter, that the present case has been brought under the heading "To Be Mentioned" for correcting the error in my order. 4. In order to set the controversy at rest, I may first refer to Section 7(2)(a) of the Act. "the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974)." 5. A reference to the said Section would show that the Family Court, is now vested with power which was earlier conferred on Magistrate of First Class under Chapter IX of Cr.P.C. By this, it does not mean that the Principal Judge, Family Court becomes a Magistrate First Class or becomes a Criminal Court. A reference to the said Section would show that the Family Court, is now vested with power which was earlier conferred on Magistrate of First Class under Chapter IX of Cr.P.C. By this, it does not mean that the Principal Judge, Family Court becomes a Magistrate First Class or becomes a Criminal Court. All that is said is that he shall have those powers as conferred on Magistrate First Class under that chapter. Next reference may be made to Sections 10(1) and 10(2) of the said Act: "10. Procedure generally.- (i) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court." 6. In no uncertain terms, Sec. 10 of the Act declares that a reference to the aforesaid provision would show that while dealing with matters under Chapter IX of Cr.P.C, the Family Court would be subject to the provisions of Cr.P.C. but it would be a Civil Court. Now reference may be made to Sec. 19(4) of the Act: "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, no being an interlocutory order, and, as to the regularity of such proceeding." 7. Here, it would be seen that if either the Family Court was exclusively a Court of civil jurisdiction then without saving much, a civil revision under Sec. 115 of C.P.C. would lie. Here, it would be seen that if either the Family Court was exclusively a Court of civil jurisdiction then without saving much, a civil revision under Sec. 115 of C.P.C. would lie. On the other hand, if it was a Court exercising criminal jurisdiction simpliciter under Cr.RC. then a criminal revision would lie under Sections 397/401 of Cr.P.C. from an order passed by the Principal Judge, Family Court under Section 7(2)(a) of the Act but it is not so. The Legislature have clearly conferred power of superintendence and revisional jurisdiction on the High Court in matters which are dealt by the Family Court with respect to Chapter IX of the Cr.P.C. by so specifically providing in Sec. 19(4) of the Act. Therefore, in my view, an application filed in revision against an order of Family Court passed under Section 7(2)(a) of the Act, a revision would lie in its own right under Sec. 19(4) of the Act. The situation is similar to those relating to revision against an order of eviction passed following procedures as prescribed under Sec. 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act. Similar is the case here. Being an order passed in ordinary civil jurisdiction, it would thus, be a civil revision under Sec. 19(4) of the Act. I may refer in this connection to a judgment of the Division Bench of the Jharkhand High Court since reported in the case of Nasreen Begum @ Nasreen Khatoon Vs. State of Jharkhand and Ors. (2006 Cri. L.J. 326) which clearly holds that Sec. 19(4) of the Act makes special provision of revision and in that case, the application was allowed to be converted into a civil revision. Reference may also be made to a Division Bench judgment of the Karnataka High Court since reported in the case of Sateppa Basappa Vs. Ku. Geetha (1999 Cri. LJ 927) wherein their Lordships have held that it is neither a revision under C.P.C. nor a revision under Cr.P.C. stricto senso. It is a revision under Sec. 19(4) of the Act. I may also refer to a Full Bench decision of the Madhya Pradesh, High Court, full reports whereof is presently not available but has been noted in A.I.R. 2006 NOC 268(ALL) wherein apparently their Lordships have held that an order with reference to Sec. 125 of Cr.RC. It is a revision under Sec. 19(4) of the Act. I may also refer to a Full Bench decision of the Madhya Pradesh, High Court, full reports whereof is presently not available but has been noted in A.I.R. 2006 NOC 268(ALL) wherein apparently their Lordships have held that an order with reference to Sec. 125 of Cr.RC. is an order passed in exercise of criminal jurisdiction and, as such, a criminal revision would lie. 8. For the reasons given above, I accept and follow the Division Bench Judgment of the Karnataka High Court and I am unable to persuade myself to take the view as taken by the learned Judges of the Full Bench of the Madhya Pradesh High Court. I may also mention here that the Registry has brought to my notice order dated 22.2.2006, passed in First Appeal No. 4 of 2006 wherein an Hon ble Single Judge of this Court has held that a criminal revision would lie in this situation. I have perused the order. In the said order, there is no consideration of the statutory provisions and, as such, I am inclined not to treat it as a precedent. I, accordingly, hold that from an order passed by the Principal Judge, Family Court under Section 7(2)(a) of the Act with reference to Sec. 125 of Cr.P.C. a revision under Sec. 19(4) of the said Act would lie to this Court and be listed as a civil revision. order accordingly recalling my earlier order dated 5.5.2006 passed in this case. 9. Put up for admission in due course as a civil revision originally instituted.