Advocates:
['VAIBHAV SINGH CHAUHAN', '', 'NAINA MITTAL', 'G A']

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 661 of 2022

Charanjeet Sood

....Revisionist

Vs.

State of Uttarakhand and Others

..... Respondents

Presents:-

Mr. Vaibhav Singh Chauhan, Advocate for the revisionist.

Mr. B.P.S. Mer, Standing Counsel for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to

the

orders

dated

06.08.2022,

27.09.2022

and

13.10.2022, passed in Misc. Criminal Case No. 227 of

2021, Smt. Rashmi Sood Vs. Charanjeet Sood, by the

court of Principal Judge, Family Court, Haridwar,

Haridwar (“the case”). By the impugned order dated

06.08.2022, the court below has directed that the case

shall be proceeded ex parte against the revisionist; By

the impugned order dated 27.09.2022, an application

filed by the revisionist for setting aside the order dated

06.08.2022, has been rejected and by the impugned

order dated 13.10.2022, an application of the revisionist

seeking assistance of legal practitioner has been

rejected.

2.

Heard learned counsel for the revisionist

and perused the record.

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3.

The case is based on an application filed

under Section 125 of the Code of Criminal Procedure,

1973 (“the Code”) by the respondent nos. 2 and 3. It is

the basis of the case.

4.

It appears that in the case, the revisionist

did not appear and the court, on 06.08.2022, ordered

that the case shall proceed ex parte against him.

Thereafter, an application was filed by the revisionist for

setting aside the order dated 06.08.2022, which was

rejected by the order dated 27.09.2022.

5.

Subsequent to it, on 13.10.2022, the

revisionist filed an application for seeking assistance of a

legal practitioner, but it was rejected, in view of the fact

that the case had already been ordered to proceed ex

parte against him.

6.

The Court wanted to know from the learned

counsel for the revisionist as to why an application may

be filed for setting aside some orders, by which the

application under Section 125 of the Code has been

ordered to proceed ex parte? The Code does not

prescribe any provision analogous to the provision, as

contained under Order IX Rule 6(1)(a) of the Code of Civil

Procedure, 1908. In fact, there is no provision in the

Code analogus to order IX Rule 7 of the Code of Civil

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Procedure, 1908. Section 126(2) of the Code provides

that all the evidence in cases under Section 125 of the

Code shall be recorded in the presence of the person

against whom the application is proposed. But, its

proviso empowers the Court that in case the person,

against whom the application is filed, wilfully avoids the

service or does not appear before the court, the matter

may be decided ex parte and such ex parte order may be

set aside. Section 126 of the Code is as hereunder:-

“126. Procedure.—(1) Proceedings under section

125 may be taken against any person in any

district—

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or

as the case may be, with the mother of the

illegitimate child.

(2) All evidence in such proceedings shall be taken

in the presence of the person against whom an

order for payment of maintenance is proposed to

be made, or, when his personal attendance is

dispensed with, in the presence of his pleader,

and shall be recorded in the manner prescribed

for summons-cases:

Provided that if the Magistrate is satisfied that the

person against whom an order for payment of

maintenance is proposed to be made is wilfully

avoiding service, or wilfully neglecting to

attend the Court, the Magistrate may proceed

to hear and determine the case ex parte and

any order so made may be set aside for good

cause shown on an application made within

three months from the date thereof subject to

such terms including terms as to payment of

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costs to t