Court No. - 87

Case :- CRIMINAL REVISION No. - 1900 of 2022

Revisionist :- Vivek Kumar Tyagi

Opposite Party :- State Of U.P. And 3 Others

Counsel for Revisionist :- Awadhesh Kumar Malviya

Counsel for Opposite Party :- G.A.,Akhilesh Kumar Singh

Hon'ble Sameer Jain,J.

Heard Sri Awadhesh Kumar Malviya, learned counsel for the

revisionist and Sri Akhilesh Kumar Singh, learned counsel for

the opposite party no. 2 and Dr. S.D. Maurya, learned AGA for

the State-respondent.

The instant revision has been filed against the order dated

25.3.2022 passed by Principal Judge, Family Court, Saharanpur

only to the extent that it imposed the cost of Rs. 30,000/- upon

revisionist in the Crl. Case No. 1433 of 2021, under Section 126

(2) Cr.P.C.

Learned counsel for the revisionist submitted that revisionist is

the husband of opposite party no. 2 and on 22.9.2021 an exparte

order under Section 125 Cr.P.C. was passed against him and he

moved an application under Section 126 (2) Cr.P.C. for

recalling the order dated 22.9.2021 which was although allowed

by the court below on 25.3.2022 but with a cost of Rs. 30,000/-.

He next submitted that the cost imposed by the court below is

highly excessive. He further submitted that before imposing the

cost of Rs. 30,000/-, no observation in this regard was made by

the court below, therefore, the cost imposed upon revisionist

while recalling the order passed under Section 125 C.P.C. is

bad.

Per contra, learned AGA and learned counsel for the opposite

party no. 2 submitted that an exparte order was passed on

22.9.2021, under Section 125 Cr.P.C. and revisionist wilfully

avoided the proceeding of the case and when the order under

Section 125 Cr.P.C. was finally passed against him then he filed

a recall application under Section 126 (2) Cr.P.C. which was

although allowed on 25.3.2022 but with a cost of Rs. 30,000/-.

Both the learned counsels next submitted that imposed cost

cannot be said to be highly excessive as revisionist is capable to

pay Rs. 30,000/- and as he was not paying any maintenance

allowance to the opposite party no. 2, therefore, there is no

illegality in imposing cost of Rs. 30,000/-. They next submitted

that as order of maintenance was passed in September, 2021

and was recalled on 25.3.2022 but in between, revisionist did

not pay even a single penny to opposite party no. 2 as a

maintenance pursuant to the order dated 22.9.2021 and

therefore, opposite party no. 2 had to initiate an execution

proceeding against him which is still pending, therefore, there is

no illegality in imposing the cost of Rs. 30,000/- upon

revisionist while recalling the order under Section 125 Cr.P.C.

I have heard learned counsel for both the parties and perused

the record of the case.

Record of the case shows that revisionist is the husband of

opposite party no. 2 and opposite party nos. 3 and 4 are her

minor daughter and son, respectively and an application under

Section 125 Cr.P.C. was filed against him on 6.8.2020 as

revisionist failed to maintain opposite party nos. 2 to 4. The

application moved by opposite party no. 2 under Section 125

Cr.P.C. was allowed exparte on 22.9.2021 and revisionist was

directed to pay a monthly allowance of Rs. 7,000 per month to

respondent Nos. 2 to 4 but he filed an application under Section

126 (2) Cr.P.C. to recall the exparte order passed under Section

125 Cr.P.C. dated 22.9.2021 and his application was allowed on

25.3.2022 and order dated 22.9.2021 was recalled but at the

cost of Rs. 30,000/- with further direction that revisionist will

pay the cost to opposite party no. 2 within one month.

As applicant is the husband of opposite party no. 2 and father of

opposite party nos. 3 and 4 and it is his responsibility to

maintain them but record suggest that he did not maintain

opposite party nos. 2, 3 and 4 and therefore, in view of the

matter if at the time of recalling the exparte order passed under

Section 125 Cr.P.C. cost of R