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2023 DIGILAW 529 (HP)

Nitish Kumar v. Neha Kumari

2023-12-14

RAKESH KAINTHLA

body2023
JUDGMENT : (Rakesh Kainthla, J.) The present petition has been filed under Section 482 of Cr.P.C. against the order dated 8.8.2022, passed by the learned Principal Magistrate, Family Court, Hamirpur, Circuit at Nadaun in Cr.MA No. 104 of 2021, under Section 125(3) of Cr. P.C., vide which the application filed by the respondent was allowed and interim maintenance of Rs.6500/- per month along with litigation charges of Rs.8500/- were awarded in her favour. 2. When the matter was listed, an objection was raised that the petition under Section 482 of Cr.P.C. would not be maintainable against the order passed by the Principal Judge, Family Court. 3. I have heard Mr. K.S. Gill, learned Counsel for the petitioner and Mr. Atharv Sharma, learned Counsel for the respondent. 4. Mr. K.S. Gill, learned counsel for the petitioner submitted that the learned Principal Judge, Family Court had awarded interim maintenance, which is not a final order and no appeal or revision lies against the same. The petitioner has no remedy except to file a petition under Section 482 of Cr.P.C. Therefore, he submitted that the petition is fully maintainable. 5. Mr. Atharv Sharma, learned counsel for the respondent submitted that the petition should have been filed under Section 19(4) of the Family Courts Act and not under Section 482 of Cr.P.C. Therefore, he prayed that the present petition be dismissed as not maintainable. 6. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 7. In Ashu Jain Vs. State of U.P. and others 2023 STPL 10374 Allahabad a petition was filed under Section 482 of Cr.P.C. to quash the order passed by Family Court. It was held by Allahabad High Court that an aggrieved person has to file a petition under Section 19 against an order passed by the Principal Judge, Family Court and a petition under Section 482 of Cr.P.C. is not maintainable. It was observed:- “16. Section 19 of the Act, 1984 clearly provides about the provision of appeal or revision only against the order or decree of the Family Court. The law is settled that special law shall prevail over the general law. It was observed:- “16. Section 19 of the Act, 1984 clearly provides about the provision of appeal or revision only against the order or decree of the Family Court. The law is settled that special law shall prevail over the general law. Therefore, in light of the provision under Section 19 of the Act, 1984, the only remedy before the applicant is to file a revision under Section 397 Cr.P.C. in case the matter doesn’t fall within the exceptions provided by the Apex Court in the matter of Dhariwal Tobacco Products Ltd.(Supra) as well as Prabhu Chawla (Supra). 17. A similar matter was before the Uttarakhand High Court in Ashu Dhiman (supra) and the Court has taken the same view. The relevant paragraph of the aforesaid judgment is quoted hereinbelow: “17. In view of the definition of the interlocutory order and the ratio of the judgment supra, this Court is of the view that an order passed under Proviso to sub-section (1) of Section 125 of Cr.P.C. rejecting or allowing an application for maintenance, pending proceedings, is not an interlocutory order which adjudicates the rights of the parties to some extent. The revision under Section 397 of Cr.P.C. is maintainable. It has been held that such an order is amenable to revisional jurisdiction of this Court. The powers of the High Court under Section 482 of Cr.P.C. are inherent in nature and could be exercised where the statutory remedy of appeal and revision under the Cr.P.C. is not available. Thus, in view of the findings recorded above that revision against such an order is maintainable, an application under Section 482 of Cr.P.C. would not be maintainable. The core issue framed by this Court to deal with the controversy is answered accordingly. Since the criminal misc. applications filed by the applicant(s) under Section 482 of Cr.P.C. are not maintainable, the applicant(s) would be at liberty to avail the remedy of filing revision if so advised. 18. Again this issue was the subject matter before the Madhya Pradesh High Court in Rajendra Kumar (Supra) and the view of the Court was again the same. The relevant paragraph of the said judgment is quoted hereinbelow: “18. 18. Again this issue was the subject matter before the Madhya Pradesh High Court in Rajendra Kumar (Supra) and the view of the Court was again the same. The relevant paragraph of the said judgment is quoted hereinbelow: “18. Considering the above legal position, I am of the considered view that an order of maintenance affects the right of a person drastically and substantially, hence, it cannot be treated as an interlocutory order and criminal revision should be preferred under Section 19(4) of the Family Courts Act against the order passed on the application for interim maintenance by the Family Court.” 19. Therefore, in view of the facts and circumstances of the case as well as judgments discussed hereinabove, the present application is not maintainable.” 8. In Rajendra Kumar Vs. Rukhmani Bisen 2023(1) Crimes 439 a petition was filed against an interim order granting maintenance by the Principal Judge, Family Court. It was held that an order of interim maintenance is not an interlocutory order and revision is maintainable against such order. It was held:- “9. In the case of Sumerchand vs Sandhuran Rani and Others, reported in 1987 Cr.L.J. 1396, Sunil Kumar Sabharwal vs Neelam Sabharwal, reported in 1991 Cr.L.J. 2056 High Court of Haryana and an order dated 15.11.18 passed by the High Court of Uttarakhand in the case of Ashu Dhiman vs Smt. Jyoti Dhiman, Cr. Misc. Application (C-482) No.434/2018, it has been held that an order passed for interim maintenance under provisions of Section 125 of Cr. P.C. is not an interlocutory order, hence, criminal revision petition is maintainable against such order.” 9. It was further held that a revision against the order granting maintenance lies under Section 19(4) of the Family Courts Act. It was observed:- “13. Sub-section (2) of Section 19 of the said Act specifically prohibits any appeal from an order passed under Chapter 9 of the Cr.P.C. which contains only four provisions, i.e., Section 125 to Section 128. Thus, a conjoint reading of sub-section (1) and sub-section (2) of Section 19 of the said Act makes it clear that the appeal would not be maintainable before this Court from an order passed under Chapter 9 of the Cr.P.C. However, it is not as if a party aggrieved by an order passed under any of the provisions of Chapter 9 of the Cf.P.C. is remediless. This is so in view of sub-section (4) of Section 19 of the said Act, which provides for the revisionary power specifically qua an order passed under Chapter 9 of the Cr.P.C. making the intent of the legislature quite clear. Once again, the exception carved out is that it should not be an interlocutory order and, thus, it would have to be examined as to what is an interlocutory order in the context of Section 125 to Section 128 of the Cr.P.C. for the purpose of Section 19 (4) of the said Act. 14. In the Case of Manish Aggarwal Vs. Seema Aggarwal &Ors., ILR (2013) 1 Delhi 210, Division Bench of Delhi High Court held that remedy of criminal revision would be available against both the interim and final orders under Section 125-128 of Cr.P.C. under sub-Section (4) of Section 19 of the said Act. iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution, we clarify that all orders as may be passed by the Family Court in the exercise of its jurisdiction under Section 7 of the said Act, which have the character of an intermediate order and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act. 15. In the case of Shah Babulal Khimji Vs. Jayaben D. Kanta & Am. AIR 1981 SC 1786 , the Apex Court has observed as below:— "11.....The Apex Court laid down that there can be three kinds of judgments. The relevant portion of the said judgment to that effect is as follows:— (1) A final judgment—A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment—This kind of judgment may take two forms—(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit. Absence of notice under Sec. 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. (3) Intermediary or interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. There may also be interlocutory orders which are not covered by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote..." 16. In the case of Aakansha Shrivastava Vs. Virendra Shrivastava & Anr. 2010 (3) MPLJ 151 Division Bench of the Madhya Pradesh High Court has held as under:— "17. Interim maintenance had been granted under Section 125 Cr.P.C. and the issue arose whether a revision petition could be preferred against that order, as it was alleged to be interlocutory in nature. It was held that the order of interim maintenance was an intermediate or quasi-final order. An analogy was drawn from Section 397 (2) of the Cr.P.C. and the pronouncement of the Supreme Court in Amarnath & Ors. Vs. State of Haryana &Ors. AIR 1977 SC 2185 qua the said provision was relied upon. Thus, an order which substantially affects the rights of an accused and decides certain rights of the parties ' was held not to be an interlocutory order so as to bar revision." 17. In the case of Aakansha Shrivastava (Supra) the Division Bench of this Court further held that any order which affects the right of a person drastically and substantially, cannot be treated as interlocutory order and criminal revision can be preferred under Section 19(4) of the Family Courts Act against the order passed on the application for interim maintenance by the Family Court. Further more in the Case of Rajesh Shukla Vs. Meena Shukla 2005(2)MPLJ 483, it has been held by the Full Bench of this Court while passing of maintenance under Section 125 of Cr.P.C. in the exercise of powers, against such order under Section 19(4) of Cr.P.C. criminal revision should be registered. In another case Nasreen Begum Vs. The State of Jharkhand & others 2006 CH.L.J. 326 has held that Section 19(4) of the said Act make special provision of revision with regard to orders passed under Section 125 of Cr.P.C. and thus revisions would lie. 18. In another case Nasreen Begum Vs. The State of Jharkhand & others 2006 CH.L.J. 326 has held that Section 19(4) of the said Act make special provision of revision with regard to orders passed under Section 125 of Cr.P.C. and thus revisions would lie. 18. Considering the above legal position, I am of the considered view that an order of maintenance affects the right of a person drastically and substantially, hence, it cannot be treated as an interlocutory order and criminal revision should be preferred under Section 19(4) of the Family Courts Act against the order passed on the application for interim maintenance by the Family Court.” 10. It was held in Palaniappa Gounder v. State of T.N., (1977) 2 SCC 634 : 1977 SCC (Cri) 397 that the Court cannot exercise inherent power when a specific remedy is available. It was observed: “3. Section 482 of the Code under which the heirs of the deceased filed the application for compensation corresponds to Section 561-A of the Criminal Procedure Code of 1898. It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A provision which saves the inherent powers of a Court cannot override any express provision contained in the statute which saves that power. This is put in another form by saying that if there is an express provision in a statute governing a particular subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter.” (Emphasis supplied) 11. Full Bench of Delhi High Court held in Gopal Dass Vs. State AIR 1978 Del 138 , that the power under Section 482 of Cr.P.C. is vested in the Court to make such order as may be necessary to give effect to any order under the Code, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was held that this power cannot be exercised when a specific remedy is available. It was observed:- “8. It was held that this power cannot be exercised when a specific remedy is available. It was observed:- “8. In order to determine the question under consideration as to what is the scope of the inherent powers of the High Court becomes relevant. The inherent powers of the High Court inhere in it because of its being at the apex of the judicial set-up in a State. The inherent powers of the High Court, preserved by section 482 of the Code, are to be exercised in making orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Section 482 envisages that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court exercised by it with the object of achieving the above said three results. It is for this reason that section 482 does not prescribe the contours of the inherent powers of the High Court which are wide enough to be exercised in suitable cases to afford relief to an aggrieved party. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. (See R.P. Kapur v. State of Punjab, AIR 1960 S.C. 866 ) (1). This principle of law had been reiterated succinctly by the Supreme Court recently in Palanippa Gounder v. The State of Tamil Nadu, (1977) 2 SCC 634 : AIR 1977 S.C. 1323 (2). Therein examining the scope of section 482 it was observed that a provision which saves the inherent powers of a Court cannot override any express provision in the statute which saves that power. Putting it in another form the Court observed that if there is an express provision in a statute governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter.” (Emphasis supplied) 12. Putting it in another form the Court observed that if there is an express provision in a statute governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter.” (Emphasis supplied) 12. It was held by the Hon’ble Supreme Court in Hamida v. Rashid, (2008) 1 SCC 474 , that the inherent power under Section 482 of Cr.P.C. is to be exercised sparingly and should not be exercised when an alternative remedy is available. It was observed: “7. It is a well-established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra [ (1977) 4 SCC 551 : 1978 SCC (Cri) 10: AIR 1978 SC 47 ] and it was held as under : (SCC p. 555, para 8) The following principles may be stated in relation to the exercise of the inherent power of the High Court: (1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice; (3) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 8. In State v. Navjot Sandhu [ (2003) 6 SCC 641 : 2003 SCC (Cri) 1545] after a review of a large number of earlier decisions, it was held as under : (SCC p. 657, para 29) “29. … The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. … The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.” 9. In Arun Shankar Shukla v. State of U.P. [ (1999) 6 SCC 146 : 1999 SCC (Cri) 1076] the High Court had entertained a petition under Section 482 CrPC after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal, this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer a statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 CrPC could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 CrPC could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 CrPC cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party. 10. In the case at hand, the respondents-accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondents-accused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed a manifest error of law in entertaining a petition under Section 482 Cr.P.C .and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for the grant of bail under Section 439 CrPC, though available to the respondents -accused, having not been availed of, the exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside.” (Emphasis supplied). 13. Therefore, it is apparent that the Court cannot exercise power under Section 482 of Cr.P.C. when an alternative remedy is available. 13. Therefore, it is apparent that the Court cannot exercise power under Section 482 of Cr.P.C. when an alternative remedy is available. Since an alternative remedy under Section 19(4) of the Family Courts Act is available; therefore, the petition under Section 482 of Cr.P.C. will not lie before this Court. 14. The petitioner may, if so advised, file an application for converting the present petition under Section 19(4) of the Family Courts Act, if permissible.