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ALLAHABAD HIGH COURT
Sudhir Kumar Saxena, J.
Chiranjeev Kumar Arya —Revisionist
versus
State of U.P & Anr. —Opp.Parties
Criminal Revision No.879 of 2015
Decided on 29.6.2016
Held: Code of Criminal Procedure has not been excluded in the D.V. Act. Since, High court’s supervisory power of revision which it can exercise suo moto against the order passed by subordinate criminal courts i.e. Magistrate or Sessions Judge has not been taken away, this court is of the view that observation made by Apex Court has been wrongly interpreted and the view taken by Hon’ble Manoj Misra, J. in the case of Prabhu Nath Tiwari (supra) appears to be a correct law. Division Bench of this court referred above was not placed before Hon’ble M. Dayal, J. Consequently, this Court is of the opinion that Sessions Judge being subordinate/inferior criminal court to the High court and there being no specific exclusion of the Cr. P.C., the revisional power of the High Court, against the order passed under Section 29 of the D.V. Act are intact and unaffected. In view of above, preliminary objection raised by Sri Pankaj Tiwari is overruled. (Para 22)
(ii) Protection of Woman From Domestic Violence Act, 2005 — Section 12 and 29 — Interim maintenance order awarded maintenance of Rs.1000/- p.m. by Magistrate — Section Court enhanced amount to Rs.3000 p.m. in appeal filed by applicant/wife — Revision — It came on record that respondent wife had become an Advocate and had number of bank accounts — She was appearing as counsel in number of cases — Advocates appearing on her behalf impersonated using enrolment no. of other advocate — Proceedings were vitiated by fraud and fact that applicant wife was practicing advocate having sufficient income reflected from various bank account was required to be — Considered by Magistrate — Orders awarding interim maintenance set aside and matter remanded for fresh consideration by Magistrate — Matter referred to Bar Council concerned for action against advocate who impersonated and Criminal Case ordered to be registered.
Result: Revision allowed accordingly.
JUDGMENT
Sudhir Kumar Saxena, J.—This revision has been filed by husband aggrieved with the order dated 02.09.2015 passed by Additional District & Sessions Judge, court No. 17, Lucknow under Section 29 of Protection of Women from Domestic Violence Act, 2005 (in short ‘the Act’).
2. It appears that Prathama Singh claiming to be the wife of present revisionist filed an application under Section 12 of the Act before learned Magistrate, Lucknow. Application was allowed by learned Magistrate ordering Rs. 1000/- per month as interim maintenance. An appeal was filed against said order by the wife of revisionist claiming maintenance @ Rs. 30,000/- per month. Said appeal has been allowed by Additional Sessions Judge, Court No. 17, Lucknow on 02.09.2015. This very order has been challenged in revision.
3. I have heard Smt. Ranjana Srivastava, learned counsel for revisionist and Sri Pankaj Tiwari, learned counsel appearing for respondent.
4. A preliminary objection has been raised by Sri Pankaj Tiwari that revision against the order passed in appeal under Section 29 of the Act would not be maintainable. He has relied upon the judgment of Hon’ble Apex court given in Criminal Appeal No. 2070 of 2014, Shalu Ojha vs. Prashant Ojha in which Hon’ble Apex Court while discussing the scheme of D.V. Act in para-27 has been pleased to observe as under:
“It can be seen from the DV Act that no further appeal or revision is provided to the High Court or any other Court against the order of the Sessions Court under Section 29.”
5. Under Section 12 of the Act, application is filed before Magistrate. Magistrate has power to pass protection order under section 18, residence order under section 19, monetary relief order under Section 20, custody order under section 21 and compensation order under Section 22 of this Act. Under Section 23 of the Act, Magistrate can pass ex-parte interim order as it deems fit and proper. Appeal is provided under Section 29 of the Act. Section 28 provides that proceedings under Sections 12, 18, 19, 20, 21, 22, 23 and offence made under section 31 shall be governed by the Code of Criminal Procedure. Section 31 provides for penalty for breach of orders. Such offences have been made non-cognizable and non- bailable under Section 32 of the Act. Section 29 of the Act is being reproduced below:
“Section 29: There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be whichever is later.”
6. From the above it is apparent that orders passed by Magistrate are to be governed by the procedure prescribed under Cr.P.C. and said order can be challenged in appeal before the court of session. Court of session is admittedly an inferior/subordinate criminal court to High Court. Section 397 of Cr.P.C. enables High Court or session court to call for record of any proceeding from any inferior criminal court.
7. Section 397 Cr.P.C. is being reproduced below:—
“Calling for records to exercise of powers of revision;—(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation—All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not be e
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