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2008 DIGILAW 602 (PAT)

Raj Kumar Sah v. State Of Bihar

2008-04-15

SAMARENDRA PRATAP SINGH

body2008
Judgment 1. The instant criminal revision application has been filed against order dated 26.2.2008 passed by the Principal Judge, Family Court, Madhubani, whereby he has rejected the prayer of the petitioner made under Section 125(4) of Cr.P.C. for recalling the earlier ex-parte order dated 26.2.2008 passed in M.R. No. 6/99AT.R.No. 887-99 alleging adultary as an ground. 2. The Stamp Reporter has pointed that a Civil Revision application would lie from an order of Principal Judge, Family Court in view of the decision of this Court reported in 2006(4) PLJR 333 : Smt. Lata Devi & Ors. vs. Umesh Nandan Sharma. However, the Stamp Reporter also pointed out that the Allahabad High Court vide A.I.R. 206 NOC 208 has held that criminal revision would lie from an order in a proceeding under Section 125 of Cr. P.C. 3. In case of Smt. Lata Devi and Ors. Reported in 2006(4) P.L.J.R. 333 the learned Judge after examining Section 7 (2) (A), Section 10 and Section 19(4) of the Act observed that though the procedure to be followed in the matters under Chapter-IX of the Cr.P.C. would be subject to the provisions of Cr.P.C. but nevertheless the Court would be a Civil Court. The learned Judge also drew analogy and observed that a civil revision is maintainable against an order of eviction passed following procedure as prescribed under Section 14 of B.B.C. Act. It was further noticed that a Division Bench of Jharkhand High Court in case of Nasreen Begum @ Nasreen Khatoon vs. State of Jharkhand and Ors., 2006 Cr.L.J, 326 held that Section 19(4) of the Family Court Act inserted by Act 59 of 1991 refers to civil revision and not criminal revision. The learned Judge also relied upon a Division Bench decision of Karnataka High Court reported in the case of Sateppa Bassappa vs. Ku. Geetha, 1999 Cr.LJ. 927. However His Lordship was not in agreement with the contrary view taken in 2006 NOC 268 Allahabad which referred to Full Bench decision of M.P. High Court. 4. The learned Judge was, thus, of the view that the order passed by the Principal-Judge, Family Court is in course of an ordinarily civil jurisdiction. As such an application against an order in respect of Chapter IX of the Code of Cr.P.C. would be a civil revision under Section 19(4) of the Act. 5. 4. The learned Judge was, thus, of the view that the order passed by the Principal-Judge, Family Court is in course of an ordinarily civil jurisdiction. As such an application against an order in respect of Chapter IX of the Code of Cr.P.C. would be a civil revision under Section 19(4) of the Act. 5. It is true that substantive relief which is ordered in respect of proceeding under Section 125 Cr.P.C. under Chapter IX of Cr.P.C. is substantially in monetory form being a sum for maintenance of widow and children and the likes. Still prior to coming of the present enactment, i.e. Family Court Act, 1984 criminal revision was maintainable under Section 397 read with Section 401 of Cr.P.C. The procedure which was followed was one that was prescribed in the Cr.P.C. itself. 6. It appears that prior to coming of Family Courts Act, 1984 different Courts dealt with matters of nature of cases mentioned in Explanation a to g to 7(1) (a). The matter enumerated therein concerns civil family dispute for dealing with and trying cases as enumerated in Explanation (a) to (g) of Section 7(1)(a). The Family Court has been deemed to be a district court or subordinate Civil Court in Section 7(1) (a) in aforesaid respect. 7. This deeming clause has conspicuously not been extended to matters covered under Section 7(2) of the Act to Section 7 of the Family Court. It would be useful to quote Section 7(2) (a) here : "7(2)(a) of the Act states that a Family Court will exercise all the jurisdiction earlier exercised 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." 8. Here one thing is obvious that the Legislature was conscious of deeming clause in Section 7 (1) (b) that a Family Court exercising jurisdiction in case of matters concerned under Explanation A to G to Section 7(1) (a) will be a Civil Court and consciously it did not incorporate the same in respect of matters covered under immediate next subsection 7(2). 9. The procedure i.e. to be followed in respect of matters mentioned in Section 7(1) and 7(2) are stated in Section 10 of the Act, which is quoted herein below : "10. 9. The procedure i.e. to be followed in respect of matters mentioned in Section 7(1) and 7(2) are stated in Section 10 of the Act, which is quoted herein below : "10. Procedure generally-(l) 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 thereun-der, shall apply to the proceedings under Chapter IX of that Code before a Family Court." 10. Thus, it is noticeable that statute clearly confers a Family Court of exercising power of district Court or subordinate civii Court in respect of suits and proceedings mentioned in Explanation therein in Section 7(1) of the Act. Section 10(1) provides that subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 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). The procedure, however, in respect of the matter arising out of Chapter IX of the Code of Criminal Procedure which was earlier exercised by the Magistrate, 1 st Class as per Section 10(2) would be as per provision of Cr. P.C. 11. From discussions made above the following facts appear: (a) A Family Court while exercising powers in respect of suits and proceedings mentioned in explanation A to G will be Civil Court and it will follow provision of C.P.C. (b) The procedure in respect of powers earlier exercised by Magistrate of 1st Class in respect of Chapter IX of Cr. P.C. will be one as per provisions of the Code of Cr. P.C. will be one as per provisions of the Code of Cr. P.C. (c) The Act does not specifically state whether Family Court would be a Civil Court or Criminal Court while exercising powers under Chapter IX of the Cr. P.C. 12. The answer to the above mentioned question has been clearly provided in Section 19(4) of the Act, 1984, by insertion of Act 59 of 1991. It would be useful to quof Section 19(4) of the Act under heading Appeals and Revisions under Chapter V : 19. (4)-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) fo. the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being and interlocutory order, and as to the regularity of such proceeding." 13. The heading Revision.under Chapter V do not refer either to Civil Revision or Criminal Revision, however, there is no dispute that power of revision flows from Section 19(4) of the Act. The wordings and the import of Section 19(4) is more or less similar to one provided under Section 397 of Cr.P.C. which deals with the revisional powers under Cr. P.C. The wording is not cast in the language of as provided in Section 115 of the Cr. P.C. The term revision as mentioned in Chapter V under heading Appeals and Revisions, in fact, refers to criminal revision. 14. This Court is in agreement with the view taken by Full Bench of the Kerala High Court in 4306 which held that revision referred to Section 19(4) would be a criminal revision and the Family Court while exercising such power under Section 19(4) in respect of matter arising out of Chapter IX of Cr.P.C. would be a Criminal Court. It is a common knowledge that the mixed jurisdiction of Family Court is a akin to any Court exercising both civil and criminal jurisdiction. 15. As divergent views have been taken by various High Courts and my own High Court I refer the matter to the Hon ble the Chief Justice for placing this matter before a Division Bench.