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2020 DIGILAW 1044 (ALL)

Dakshpal Singh v. State Of U. P.

2020-07-29

GAUTAM CHOWDHARY

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JUDGMENT : 1. Heard Sri Ashish Goyal, learned counsel for the applicant and Sri Prashant Kumar, learned A.G.A. assisted by Sri P.K. Shahi, for the State. 2. By means of this application under section 482 Cr.P.C. the applicant has challenged the order dated 27.02.2020 passed by the Addl. Session Judge, Court No. 16, Agra in Criminal Appeal No. 137 of 2019 Dakshpal Singh Vs. State of U.P. and others as well as the ordered 27..03.2019 passed by Additional Chief Judicial Magistrate, Court no. 07, Agra in complaint case No. 1415 of 2017 (Smt. Vijay Laxmi & Twinkal and others Vs. Dakshpal Singh), under section 12 of the Protection of Women from Domestic Violence Act, police Station Jagdishpura, District Agra. 3. The brief facts of this case are that that opposite party no. 2 filed a complaint under section 12 of the Protection of Women from Domestic Violence Act in Police station-Jagdishpura, District-Agra before the court below on 15.07.2017 against the applicant and other family members. On 27.03.2019 the learned Additional Chief Judicial Magistrate, Court No. 7 granted the interim maintenance in favour of the opposite party No. 2 and directed the applicant to pay Rs. 8,000/-per month from the opposite party no. 2 and Rs. 2,000/-per month for her minor child on 10th date of each month. 4. After passing the aforesaid order the applicant moved a criminal appeal before the court of District & Sessions Judge, Agra on 07.05.2019 and challenged the order dated 27.03.2019 passed by the Addl. Chief Judicial Magistrate, Court No. 7, Agra whereby on 27.02.2020 learned Addl. Sessions Judge, Court no. 16, Agra confirmed the order dated 27.03.2019 passed by the A.C.J.M.,Court No. 7, Agra. 5. It is argued on behalf of applicant that the application under section 482 Cr.P.C. is maintainable but failed to produce or supply any case law in support of his arguments. 6. Learned A.G.A. has vehemently opposed the application and raised the controversy with regard to the maintainability of the revision against the order passed in appeal under section 29 of the Act which has already been settled by Full Bench of this Court in the case of Dinesh Kumar Yadav Vs. 6. Learned A.G.A. has vehemently opposed the application and raised the controversy with regard to the maintainability of the revision against the order passed in appeal under section 29 of the Act which has already been settled by Full Bench of this Court in the case of Dinesh Kumar Yadav Vs. State of U.P. reported in 2016 (11) ADJ 29 wherein it has been held in paragraph No.23.2, 24 and 25 as under: "23.2 In view of the above, as the remedy of an appeal had been provided under Section 29 of the Act, 2005 before a Court of Sessions, which means a Court of Sessions referred under Section 6 read with Sections 7 and 9 of the Cr P C, without saying anything more as regards the procedure to be followed in such appeal, and there being nothing to the contrary in the Act of 2005 which may be indicative of exclusion of the application of the provisions of Cr.P.C. to such an appeal, the normal remedies available against a judgment and order passed by a Court of Sessions by way of appeals and revisions prescribed under the CrPC before the High Court, are available against an order passed in appeal under Section 29 of the Act, 2005. 24. The Single Judge Benches of this Court in the case of Nishant Krishan Yadav (supra) and Mrs. Manju Sree Robinson (supra) have erred in holding that such a criminal revision is not maintainable before the High Court. The judgment in Chiranjeev Kumar Arya (supra) against which the Special Leave Petition has been dismissed by the Supreme Court on 12.08.2016 and the judgment in Prabhunath Tiwari (supra) lay down the law correctly. 25. In the result, we answer the first question in the affirmative holding that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly. In other words, we hold that a revision under Section 397/401 of Cr P C against a judgment and order passed by the Court of Sessions under Section 29 of the Act, 2005 is maintainable and that the decisions in Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do not lay down the law correctly." 7. As such the applicant has statutory alternative remedy of filing a revision. Consequently, present application under section 482 Cr.P.C. is dismissed on the ground of alternative remedy. 8. As such the applicant has statutory alternative remedy of filing a revision. Consequently, present application under section 482 Cr.P.C. is dismissed on the ground of alternative remedy. 8. Certified copy, if any, may be returned to the applicant's counsel. 9. Taking into consideration that Covid-19 pandemic is continuing and due to which certified copy of this order would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self-attested by the counsel for the applicant is placed before the Court concerned, the same would be entertained.