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2016 DIGILAW 3008 (ALL)

Chhabila Singh Yadav v. State of U. P.

2016-09-01

PRABHAT CHANDRA TRIPATHI

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JUDGMENT Prabhat Chandra Tripathi, J. – Heard Sri M.P. Yadav, learned counsel for the revisionists and Sri Manoj Yadav, Advocate, holding brief of Sri Awadhesh Tiwari, learned counsel for the opposite party nos. 2 and 3 and perused the record. 2. This criminal revision has been preferred by the revisionists for setting aside the impugned judgment and order dated 06.11.2012 passed by the learned Chief Judicial Magistrate, Ballia in Complaint Case No. 70 of 2012, under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (Smt. Suman Devi v. Raju Singh Yadav and others) and impugned judgment and order dated 25.08.2014 passed by the learned Additional Sessions Judge (Ex Cadre), Ballia in Criminal Misc. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others). 3. It is contended by learned counsel for the revisionists that the learned Chief Judicial Magistrate, Ballia had passed an ex-parte order dated 06.11.2012 without providing an opportunity of hearing to the revisionists, which is against the settled principles of law. It is further contended that the appellate court has also erred in dismissing the appeal filed by the revisionists on the ground of limitation without considering the merit of the case. It is also submitted that the revisionists are living separately and they have no concern either direct or indirect with the opposite party no. 2 and her husband. It is next submitted that the revisionists had no knowledge about the ex-parte order and the said fact came into knowledge when the Police of Police Station Kasimabad, Ghazipur reached at the house of the revisionists to serve the copy of the order dated 06.11.2012 for making payment of monetary relief. 4. Learned counsel for the revisionists has relied upon the judgment of High Court of Uttrakhand in case of S. Vishwanathan s/o Shankaran v. Pushpa and State of Uttarakhand, 2011 (74) AllCriC 43 and also the judgment of this Court in Criminal Revision No. 864 of 2012 (Smt. Rani Devi v. State of U.P. & others) decided on 13.7.2016. 5. Section 13 of the Protection of Women from Domestic Violence Act, 2005 is a mandatory section which cannot be over-sighted. Learned Magistrate has not complied with Rule 12 of the Protection of Women from Domestic Violence Rules, 2006 where it was required by him to clearly mention about the service of notice. 6. 5. Section 13 of the Protection of Women from Domestic Violence Act, 2005 is a mandatory section which cannot be over-sighted. Learned Magistrate has not complied with Rule 12 of the Protection of Women from Domestic Violence Rules, 2006 where it was required by him to clearly mention about the service of notice. 6. Although, while deciding the Criminal Misc. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others) vide order dated 25.08.2014, the learned Additional Sessions Judge (Ex Cadre), Ballia has mentioned that it came into knowledge of the appellant on 25.4.2013 when the Police of Police Station Kasimabad, Ghazipur went to serve the recovery warrant issued in Execution Case No.03 of 2013 of ex-parte judgment and order dated 06.11.2012 and, thereafter the learned Additional Sessions Judge (Ex Cadre), Ballia dismissed the application under Section 5 of Limitation Act preferred by the appellant/ opposite party no. 3, Raju Singh. The order dated 25.4.2013 passed by the learned Sessions Judge (Ex Cadre) Ballia in Criminal Misc. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others) is a non-speaking order regarding the details of service upon the appellant/ opposite party, Raju Singh and others. 7. Resultantly, the impugned judgment and order dated 06.11.2012 passed by the learned Chief Judicial Magistrate, Ballia in Complaint Case No. 70 of 2012 (Smt. Suman Devi v. Raju Singh Yadav and others) under Section 12 of the Protection of Women from Domestic Violence Act, 2005, Police Station-Kotwali, District-Ballia and order dated dated 25.8.2014 passed by the learned Additional Sessions Judge (Ex Cadre), Ballia in Criminal Misc. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others) are liable to be set aside for the reasons discussed as above. 8. Accordingly, this revision summarily allowed. 9. The impugned judgment and order dated 06.11.2012 passed by the learned Chief Judicial Magistrate, Ballia in Complaint Case No. 70 of 2012 (Smt. Suman Devi v. Raju Singh Yadav and others) under Section 12 of the Protection of Women from Domestic Violence Act, 2005, Police Station-Kotwali, District-Ballia and order dated 25.8.2014 passed by the learned Additional Sessions Judge (Ex Cadre), Ballia in Criminal Misc. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others) are hereby set aside. 10. Application No. 46 of 2013 (Raju Singh and others v. State of U.P. and others) are hereby set aside. 10. The revisionists, namely, Chhabila Singh Yadav, Dheeraj Singh Yadav, Smt. Muneshwari Devi, Rahul Kumar @ Mulayam, Prem Shankar @ Pappu, Ranju Devi, Km. Rinku Singh Yadav, Anil Kumar Yadav and Smt. Tara Devi, are directed to appear before the trial court on 16th September, 2016. 11. Learned trial court is directed to pass a fresh order after hearing the parties. In case, they fail to appear before the trial court personally or through counsel on the date fixed i.e. on 16th September, 2016 or on the date fixed thereafter by the said court, the trial court is at liberty to pass appropriate order after hearing the opposite parties. Revision Allowed.