Back
2014 Supreme(All) 3341
ALLAHABAD HIGH COURT
Harsh Kumar, J.
Inamul Haq - Appellant
Versus
Shahin Jahan - Respondent
Criminal Revision Nos. 590, 591 and 672 of 1998
Decided On : 05-08-2014
For the Appellant : Daya Shanker Misra and C.K. Mishra
For the Respondents: A.G.A., D.S. Tiwari and B.C. Mishra
The main legal point established in the judgment is the court's authority to impose conditions in an order under section 126(2) Cr.P.C. and the need for just and proper conditions. The judgment also emphasizes the importance of expeditious disposal of maintenance petitions.
Headnote:
Criminal Revision - Proceedings under section 125Cr.P.C. - 126(2) Cr.P.C., 127 Cr.P.C. - The court discussed the imposition of conditions in the impugned order, the legality of imposition of terms and conditions in an order under section 126(2) Cr.P.C., and the rejection of the application under section 127 Cr.P.C. The court upheld the order allowing the application under section 126(2) Cr.P.C. with modifications in conditions and confirmed the rejection of the application under section 127 Cr.P.C.
Fact of the Case:
The case involved three Criminal Revisions arising from proceedings under section 125Cr.P.C. between the parties before the Family Court, Moradabad. The wife had moved an application under section 125 Cr.P.C. in 1994, which was allowed ex parte. The husband moved applications under section 126(2) Cr.P.C. and section 127 Cr.P.C. which were rejected. The husband also filed a restoration application which was rejected due to non-compliance of conditions.
Finding of the Court:
The court found that the conditions imposed at the time of setting aside the ex parte order were just and proper, but the time given for compliance with the conditions was insufficient. The court upheld the order allowing the application under section 126(2) Cr.P.C. with modifications in conditions and confirmed the rejection of the application under section 127 Cr.P.C. The court also set aside the order rejecting the restoration application.
Issues: The issues involved the imposition of conditions in the impugned order, the legality of imposition of terms and conditions in an order under section 126(2) Cr.P.C., and the rejection of the application under section 127 Cr.P.C.
Ratio Decidendi: The court held that the conditions imposed at the time of setting aside the ex parte order were just and proper, but the time given for compliance with the conditions was insufficient. The court also emphasized the need for expeditious disposal of the maintenance petition.
Final Decision: The court dismissed Criminal Revision No. 591 of 1998, allowed Criminal Revision No. 672 of 1998, and partly allowed Criminal Revision No. 590 of 1998 with modifications in conditions. The court directed the Family Court to decide the maintenance petition expeditiously.
Harsh Kumar, J.
1. These three Criminal Revisions being Criminal Revision No. 672 of 1998, 590 of 1998 and 591 of 1998, which have arisen from the proceedings under section 125Cr.P.C. between the parties, before the Family Court, Moradabad, passed in case Nos. 314 of 1997 and 315 of 1997. The brief facts of the case are that the opposite party Smt. Shahin Jahan moved an application in the year 1994 under section 125 Cr.P.C. against the revisionist, which was allowed ex parte vide order dated 10.3.1997. The revisionist moved an application under section 126(2) Cr.P.C. for setting aside the ex parte order dated 10.3.1997 passed in maintenance petition Case No. 112 of 1997, (original number 896/9 of 1994) which was decided vide order dated 16.4.1998 and the application was allowed, setting aside the order dated 10.3.1997 subject to certain conditions.
2. Feeling aggrieved with the imposition of conditions in the impugned order dated 16.4.1998 allowing his application under section 126(2) Cr.P.C. the husband has preferred Criminal Revision No. 590 of 1998. The revisionist had also moved an application under section 127 Cr.P.C., numbered as Misc. case No. 315 of 1997 which was rejected vide separate order dated 16.4.1998 and Criminal Revision No. 591 of 1998 has been preferred by husband against that order.
3. Since the revisionist failed to comply with the conditions imposed on him vide impugned order dated 16.4.1998 passed in Misc. Case No. 314 of 1997, at the time of setting aside ex parte order, the learned Court due to non compliance of conditions imposed, rejected the restoration vide order dated 20.4.1998 and feeling aggrieved the revisionist has filed Criminal Revision No. 672 of 1998.
4. Thus, against the three orders (i) dated 16.4.1998 allowing application under section 126(2) Cr.P.C. (ii) date'd 16.4.1998 rejecting application under section 127Cr.P.C. and (iii) dated 20.4.1998 rejecting the application under section 126(2) Cr.P.C. for noncompliance of conditions, the revisionist has preferred these revisions and all the three matters since relates to same proceeding between the same parties, they are being decided together by a common order.
5. Heard Sri D.S. Mishra, learned Counsel for the revisionist. None has appeared for the opposite party Smt. Shahin Jahan.
6. Learned Counsel for the revisionist argued that at the time of setting aside ex parte order dated 10.3.1997, the Family Court, Moradabad had no jurisdiction to impose any conditions in allowing application under section 126(2) Cr.P.C. and imposition of such harsh conditions is against the principles of natural justice, so the conditions are liable to be deleted and impugned order dated 16.4.1998 is liable to be modified; that since the revisionist has entered into second marriage and is getting sufficient salary so as to maintain herself, the ex parte order of maintenance passed under section 125 Cr.P.C. on 10.3.1997 is liable to be cancelled within the provision of section 127 Cr.P.C.; that the revisionist is Notary Advocate having a small income from profession; that since the conditions imposed at the time of allowing application under section 126(2) Cr.P.C. were unjust and unwarranted, so the order dated 20.4.1998 rejecting the restoration application due to non-compliance of conditions is also wrong, illegal and incorrect and is liable to be set aside.
7. Though State is necessary party to be impleaded in revisions in criminal matters but the revisionist has not impleaded State as opposite party and it is noteworthy that State was impleaded as opposite party in Criminal Revision No. 191 of 1995, Inamul Haq v. State of U.P. and Shahin Jahan earlier filed by revisionist. The learned AGA is present to assist the Court on behalf of opposite party State, which is necessary party and was heard.
8. Learned AGA defended the impugned order and submitted that the material on record shows that revisionist is an Advocate and taking undue advantage of being lawyer by
