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2016 DIGILAW 1968 (HP)

Sunder Lal v. Master Vikas

2016-09-14

P.S.RANA

body2016
ORDER: P.S. Rana, J. Present petition is filed under Section 482 Code of Criminal Procedure 1973 read with Article 227 of Constitution of India against order dated 03.11.2015 whereby learned Judicial Magistrate appointed Smt. Pushpa Devi wife of Sh. Yash Pal as next friend of minor Vikas in case No.53-4 of 2013 filed under Section 127 Code of Criminal Procedure 1973 for enhancement of monthly maintenance allowance awarded vide order dated 10.09.2001 in case No.35-4 of 2000. Brief facts of the case: 2. Smt. Urmila Devi and master Vikas filed application under Section 125 Code of Criminal Procedure 1973 and same was decided on 10.09.2001 by learned Judicial Magistrate Anni Distt. Kullu (H.P.). Smt. Urmila Devi and master Vikas filed maintenance petition under Section 125 Code of Criminal Procedure 1973 on the ground that Smt. Urmila Devi was student of 7th class in Govt. Middle School Tandi. It is alleged that Sh. Sunder Lal was also posted in Govt. Middle School Tandi as teacher. It is alleged that Sh. Sunder Lal in the month of March 1998 caught Smt. Urmila Devi in her house and committed sexual intercourse against the will of Smt. Urmila Devi. It is alleged that Smt. Urmila Devi became pregnant and thereafter minor Vikas born. During pendency of petition filed application under Section 125 Code of Criminal Procedure 1973 Smt. Urmila Devi married and she did not press her maintenance allowance petition before learned Judicial Magistrate. Learned Judicial Magistrate granted monthly maintenance allowance to minor Vikas @ Rs.500/- per month from the date of filing of application. Thereafter minor Vikas filed application under Section 127 Code of Criminal Procedure 1973 for enhancement of monthly maintenance allowance from Rs.500/- per month to Rs.10,000/- per month. It is alleged that minor Vikas is student of 10th class in Govt. Senior Secondary School Tandi. It is alleged that minor Vikas could not meet the necessity of life within meager amount of maintenance allowance granted by learned Judicial Magistrate. During pendency of petition minor Vikas filed application under Order XXXII Code of Civil Procedure 1908 for appointment of next friend of minor in proceedings under Section 127 Cr.PC. Learned Trial Court vide order dated 03.11.2015 appointed Smt. Pushpa Devi wife of Sh. Yash Pal Rana who is maternal aunt of minor as next friend of minor. Aggrieved against the order Sh. Sunder Lal filed present petition. 3. Learned Trial Court vide order dated 03.11.2015 appointed Smt. Pushpa Devi wife of Sh. Yash Pal Rana who is maternal aunt of minor as next friend of minor. Aggrieved against the order Sh. Sunder Lal filed present petition. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner and Court also perused the entire record carefully. 4. Following points arise for determination: (1) Whether petition filed under Section 482 Code of Criminal Procedure 1973 read with Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? (2) Final order. Findings upon Point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that learned Trial Court appointed Smt. Pushpa Devi maternal aunt of minor as next friend without consent of natural guardian and on this ground petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is proved on record that on dated 09.10.2015 learned Judicial Magistrate issued notice to natural mother of minor Smt. Urmila Devi. It is proved on record that Smt. Urmila Devi natural mother of minor appeared before learned Trial Court and filed affidavit that she has no objection if Smt. Pushpa Devi is appointed as next friend of minor. Smt. Urmila Devi had also given affidavit to the effect that minor Vikas is under the care of Smt. Pushpa Devi. There is recital in the affidavit that Smt. Pushpa Devi is providing all necessities of life to minor and is also bearing expenses of education of minor. Affidavit filed by Smt. Urmila Devi before learned Trial Court remain unrebutted on record. 6. Submission of learned Advocate appearing on behalf of petitioner that proceedings under Section 127 Code of Criminal Procedure 1973 are criminal proceedings and no order under Order XXXII Code of Civil Procedure 1908 can be passed by criminal Court and on this ground petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is held that proceedings under Section 127 Code of Criminal Procedure 1973 are quasi criminal and quasi civil proceedings. It is held that in quasi criminal and quasi civil proceedings provisions of order XXXII Code of Civil Procedure can be invoked. It is held that proceedings under Section 127 Code of Criminal Procedure 1973 are quasi criminal and quasi civil proceedings. It is held that in quasi criminal and quasi civil proceedings provisions of order XXXII Code of Civil Procedure can be invoked. It is well settled law that Chapter IX and Section 125 to 128 of Code of Criminal Procedure 1973 are measure of social justice to protect women and children from vagrancy and destitution. See AIR 1999 SC 3348 Dwarka Prasad Satpathy vs. Bidyut Prava Dixit. See AIR 1978 SC 1807 Ramesh Chander Kaushal vs. Mrs Veena Kaushal and others. See 1991 (2) SCC 375 Vimala (K) vs. Veeraswamy (K). See 1971 (3) SCC 923 S. Sethu rathinam vs. Barbara. 7. Submission of learned Advocate appearing on behalf of petitioner that Smt. Pushpa Devi is not appointed under Hindu Minority and Guardianship Act 1956 and under Guardians and Wards Act 1890 and on this ground petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that it is the duty of the Court to appoint next friend of minor in judicial proceedings. It is also well settled law that any person can be appointed next friend of minor if he fulfilled following conditions: (1) Next friend should not be of unsound mind. (2) Next friend himself should not be minor. (3) Next friend should not have any adverse interest against minor. 8. Submission of learned Advocate appearing on behalf of petitioner that Smt. Pushpa Devi has adverse interest qua minor and on this ground petition be allowed is rejected being devoid of any force for reasons hereinafter mentioned. There is no evidence on record that Smt. Pushpa Devi has adverse interest qua minor. Plea of petitioner that Smt. Pushpa Devi has adverse interest qua minor is defeated on the concept of ipse dixit. (An assertion made without proof). In view of the fact that petition under Section 127 Code of Criminal Procedure filed by minor and in view of the fact that Courts are under legal obligation to protect the interest of minor it is held that learned Trial Court did not commit any illegality by way of appointing Smt. Pushpa Devi as next friend of minor in proceedings under Section 127 Code of Criminal Procedure 1973. In view of above stated facts point No.1 is answered in negative. In view of above stated facts point No.1 is answered in negative. Point No.2 (Final order). 9. In view of findings upon point No.1 above petition is dismissed. File of learned Trial Court along with certified copy of this order be sent back forthwith. Observations will not effect merits of case in any manner and will be strictly confined for disposal of present petition. Learned Trial Court will dispose of petition of minor within two months. Parties are directed to appear before learned Trial Court on 30.09.2016. Cr. MMO No.365/2015 is disposed of. Pending applications if any also disposed of.