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2017 DIGILAW 1080 (MP)

Pushplata Savita v. Mahesh @ Yogendra

2017-10-11

S.K.AWASTHI

body2017
ORDER 1. The applicant has preferred this criminal revision assailing the order dated 11.4.2017 passed by IV Additional Sessions Judge, Gwalior in Criminal Appeal No. 600046/2016, whereby the Sessions Court allowing the appeal filed by the respondent remanded the case to the trial Court with a direction to decide afresh. 2. Briefly stated facts of the case are that the applicant had filed an application under section 12 of the Protection of Women from Domestic Violence Act (for brevity 'the Act') for getting maintenance from the respondent which was registered as MJC No.16207/2009. This application was allowed by the Judicial Magistrate First Class, Gwalior on 12.10.2012 and respondent was directed to pay Rs.2,000/- per month as maintenance to the applicant and also passed a protection order in favour of applicant but respondent failed to comply the said order passed by JMFC, Gwalior, hence, the applicant made a complaint against the respondent under section 31 of the Act before JMFC, Gwalior which was registered as Criminal Case No.7321/2014. After concluding the proceedings, the judgment was passed by the trial Court on 8.1.2016 and respondent was convicted for the offence punishable under section 31 of the Act and was sentenced to 1 year's rigorous imprisonment with fine of Rs.1,000/-, with default stipulation. 3. Feeling aggrieved by the order dated 8.1.2016, the respondent filed an appeal against the conviction and sentence passed by the Judicial Magistrate First Class, Gwalior before the Sessions Court which was registered as Criminal Appeal No.600046/2016. After hearing both the parties, the appellate Court has allowed the appeal vide order dated 11.4.2017, set aside the Judgment of trial Court dated 8.1.2016 and remanded the case back to the trial Court for fresh determination, which is the subject matter of challenge in the present revision petition. 4. Learned counsel for the applicant submits that the appellate Court has committed grave error in allowing the appeal and relegating the matter to the trial Court for fresh determination. The appellate Court did not consider the fact that the respondent has paid the maintenance amount till 12.9.2013, in compliance of the order passed by the Judicial Magistrate First Class, Gwalior in Criminal MJC No.16207/2009, and the same has not been challenged by the respondent, then it does not lie in the mouth of the respondent that he has no knowledge about the said order. Therefore, it is prayed that the present revision be allowed and the order passed by the IVth Additional Session Judge be set aside. 5. Heard learned counsel for the applicant and perused the documents filed along with the revision petition. 6. From perusal of record, it is evident that the applicant had filed an application under section 12 of the Act against the respondent before JMFC, Gwalior which was registered as MJC No.16207/2009. The said application was allowed in favour of the applicant vide order dated 12.10.2012 and the respondent was directed to pay Rs.2,000/- per month to the applicant. The protection order was also passed in favour of the applicant, but the order indicates that the respondent did not appear in that case and an ex parte order was passed against him. It was directed by the Court that the copy of order be sent to the concerned SHO, and the Protection Officer, however, no order was passed that the copy of order be sent to the respondent which is mandatory under the provision of section 24 of the Act, therefore, it cannot be said that the order passed by the Court below was communicated to the respondent. Applicant claims that in compliance of order dated 12.10.2012, respondent was paying Rs.2,000/- per month as maintenance till 12.9.2013 and after that he did not pay any maintenance amount to her, but she has not filed any document to substantiate her claim. Therefore, it cannot be acceptable that respondent knew about the order dated 12.10.2012 passed by the JMFC, Gwalior in MJC No. 16207/2009. 7. Jai Singh (DW1) admitted in his cross-examination that the respondent has not complied with the order dated 12.10.2012, in spite of appearing appear before the Court. On the basis of this admission, trial Court has taken note of the fact that the respondent was having knowledge about the order passed by the JMFC in MJC No.16207/2009, which is not so because the reply is given by the witness in the context of Criminal Case No.7321/2014. In these circumstances, learned Sessions Judge has rightly held that the respondent has no knowledge about the order passed by JMFC in MJC No.16207/2009. 8. Upon cumulative consideration of discussion made herein above, the instant revision application has no substance and is hereby dismissed.