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2009(3) Crimes 41 (Pat.)
PATNA HIGH COURT
C.K. Prasad and Dr. Ravi Ranjan, JJ.
Raj Kumar Sah —Appellant
versus
State of Bihar and Anr. —Respondents
Criminal Revision No. 321 of 2008
Decided on 24.10.2008
Held: in view of the language of Section 19 (4) of the Act and heading of Chapter V in which Section 19 finds place, we are of the opinion that an application under Section 19(4) of the Act against an order passed by the Family Court under Chapter IX of the Code of Criminal Procedure has to be treated as revision. This revision application shall neither be a revision application under Section 397 of the Code of Criminal Procedure nor a revision under Section 115 of the Code of Civil Procedure, but a revision under Section 19 (4) of the Family Courts Act.
In view of our conclusion aforesaid, the question which falls for four determination is as to whether an application filed under Section 19(4) of the Act against an order passed by the Family Court in an application under Section 125(4) of the Code of Criminal Procedure shall be registered as Civil Revision Application or Criminal Revision application. (Paras 8 & 9)
As stated earlier, section 125 of the Code of Criminal Procedure falls under Chapter IX of the Code. Under Section 7(1)(b) of the Act, the Family Court though having conferred with the power to exercise jurisdiction of a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, but Family Court exercising such power has not been described as a Criminal Court, but in my opinion that shall not make any difference. In my opinion, if the Family Court is not deemed to be a District Court or a Subordinate Civil Court and when it exercises power exercisable by a Magistrate of the First Class, it shall be just and proper to assume that it is exercising the power of a Criminal Court.
Thus from perusal of the scheme of the Act, I am of the opinion that the Family Court exercises two types of power, suits and proceeding except the proceeding under Chapter IX of the Code of Criminal Procedure are decided by the Family Court as a District Court or a Subordinate Civil Court and while dealing with the proceeding under Chapter IX of the Code of Criminal Procedure exercises the jurisdiction of the Judicial Magistrate First Class. In the circumstances, when orders have been passed in exercise of the power of the Judicial Magistrate First Class, revision before this Court under Section 19 (4) of the Act cannot be termed as Civil Revision. In my opinion, the order passed under Chapter IX of the Code of Criminal Procedure by a Family Court is revisable under Section 19(4) of the Act as a Criminal Revision. (Paras 12 and 13)
From the discussion aforesaid, what can safely be said that the Family Court while exercising the power under Chapter IX of the Code of Criminal Procedure is neither District Court nor Subordinate Civil Court. Thus on principle, I am of the opinion that a revision under Section 19(4) of the Act against an order passed under Chapter IX of the Code of Criminal Procedure is fit to be registered as a Criminal Revision application. (Para 17)
JUDGMENT
C.K. Prasad, J.—This application has come up for consideration before us on a reference made by a learned Single Judge of this Court.
Short facts giving rise to the present application are that in exercise of the power under Section 125 of the Code of Criminal Procedure, petitioner, who happens to be the husband of one Ram Kumari Devi, was directed to pay maintenance at the rate of Rs. 250 per month to her and Rs.150 each for the two children. Petitioner filed application dated 5.4.2004 under Section 125(4) of the Code of Criminal Procedure for recall of the said order. Principal Judge, Family Court, Madhubani by order dated 26.2.2008 passed in M.R. No.6 of 1999 rejected the said prayer.
2. Aggrieved by the same, petitioner filed this Criminal Revision Application under Sections 397 and 401 of the Code of. Criminal Procedure read with Section 19(4) of the Family Courts Act, 1984.
3. The Stamp Reporter objected to the maintainability of Criminal Revision Application and observed that against an order passed by the Principal Judge, Family Court, Civil Revision would lie. For the aforesaid view, the Stamp Reporter relied on a judgment of the learned Single Judge in the case of Lata Devi and others v. Umesh Nandan Sharma,l Petitioner contested the stamp-report and contended that the Principal Judge, Family Court having rejected application filed under Section 125(4) of the Code of Criminal Procedure, Criminal Revision would lie. The matter came up for consideration before the learned Single Judge, who doubted the correctness of the judgment of this Court in the case of Lata Devi and others (supra) and referred the matter for decision by a Division Bench. This is how the matter has come up before us for consideration.
4. Mr. B.P. Verma, Senior Advocate, appears on behalf of the petitioner, whereas opposite party No.2 is represented by Mr. Prabhakar Kumar, Mrs. Parmeshwar Mehta, Additional Public Prosecutor, appears on behalf of the State.
5. We have heard them.
6. True it is that the objection of the Stamp Reporter is founded on the judgment of this Court in the case of Lata Devi (supra). Neither the principle nor the precedents persuade me to sustain the objection of the Stamp Reporter.
7. The contention raised necessitates examination of the scheme of the Family Courts Act, 1984 (hereinafter referred to as the ‘Act’). It is apt to reproduce Section 19 of the Act, which reads as follows:
Chapter V
(Appeals and Revisions)
“19. Appeal—(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before he commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal prefer
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