Delhi District Court
Sandhya Tewary vs Capt. Rajender Tewary on 20 February, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0242052014
Criminal Revision Number : 219/2/14
Sandhya Tewary
w/o Captain Rajender Tewary
r/o Flat no. 354, Sector 37
Arun Vihar, Noida
Uttar Pradesh ...Petitioner/Revisionist
versus
1. Capt. Rajender Tewary,
S/o Late Sh. Om Prakash Tewary,
r/o Flat no. 354, Sector 37, Arun Vihar,
Noida, Uttar Pradesh
also at
B 5/158, First Floor,
Safdurjung Enclave,
New Delhi
2. Col. Shashank Tewary,
S/o Late Sh. Om Prakash Tewary,
r/o B 5/158, Ground Floor,
Safdurjung Enclave,
New Delhi
CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 1 of 9
3. Smt. Bina Sharma,
w/o Sh. Sadan Sharma,
r/o A10/A, Green Park,
New Delhi
4. Smt. Rani Sharma,
w/o Sh. Om Prakash Sharma
B 5/158, Second Floor,
Safdurjung Enclave,
New Delhi ...Respondents
Date of receipt of file in this Court: 18.12.2014
Date when arguments were heard : 20.02.2015
Date of judgment : 20.02.2015
20.02.2015
ORDER
1. The present order shall dispose of an issue regarding the maintainability of the present revision petition.
2. The present revision petition was filed u/s 397 Cr.P.C by the revisionist/complainant/wife against the impugned order dated 01.11.2014 as passed by ld. MM01, Mahila Court, Saket Courts, New Delhi in complaint case No. 449/1 under Section 12 of The Protection of Women from Domestic Violence Act, 2005 ( in short D.V. Act ) in the CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 2 of 9 matter titled as Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. Vide said impugned order the learned Trial Court while disposing of the application of the complainant/revisionist for summoning certain other witnesses in complainant's evidence granted one opportunity to the revisionist for leading further complainant evidence subject to the cost of Rs. 500/ to be paid in DLSA South. The learned Trial Court allowed the said application only qua the witness Ms. Meenakshi Vyas and held that there was no need for summoning any record as the same pertained to judicial record and held that the revisionist/complainant was at liberty to file certified copy of the said judicial orders in her evidence to prove the case.
3. I have heard the arguments on the maintainability of the present revision petition of the learned counsel for the revisionist and the learned counsel for the respondent no. 1 and perused the revision file.
4. Learned counsel for the revisionist has argued that the revision petition is maintainable against the impuged order in view of Section CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 3 of 9 28 (1) of D.V. Act. He further argued that the impugned order was only interim in nature and no appeal in the facts of the case is maintainable. He further argued that section 29 of D.V. Act is not applicable to the present case and only revision petition u/s 397 Cr.P.C is maintainable.
5. Per contra, learned counsel for respondent no. 1 / husband argued that the present revision petition filed by the revisionist / wife was not maintainable in the eyes of law because D.V. Act is a Special Act which provides an effective and alternative remedy of filing an appeal u/s 29 of D.V. Act. He also referred to Section 29 of The D.V Act which provides for 'Appeal' He thus argued that the present revision petition be dismissed as not maintainable. In this regard he referred to the judgment of Hon'ble Delhi High Court in case titled as Smt. Maya Devi Vs. The State of NCT of Delhi & Anr (Delhi)2007 (4) JCC 2819.
6. The certified copy of impugned order dated 01.11.2014 is on record. As discussed above, the revisionist / wife has filed the present Criminal Revision u/s 397 Cr.P.C against the impugned order dated CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 4 of 9 01.11.2014 wherein the learned trial court although granted one opportunity to the revisionist for leading complainant's evidence but imposed a cost of Rs. 500/ to be deposited in DLSA (South), allowed the application qua witness Ms. Meenakshi Vyas and declined for summoning any record as it pertained to judicial record with liberty to the revisionist /complainant to file certified copy of the said judicial orders in her evidence to prove her case. As the court is deciding the issue only regarding maintainability of the present revision petition, therefore, trial court record has not been summoned and the revision petition is being disposed of after hearing the arguments of learned counsel for the revisionist and respondent no. 1 only.
Section 29 of The D.V. Act provides as under :
"29. Appeal There shall lie an appeal to the court of Sessions 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".
7. It is evident that Section 29 of The D.V. Act provides an CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 5 of 9 effective and an alternative remedy of filing of appeal by the revisionist/complainant against the impugned order of the learned Trial Court. It is further a settled law that the D.V. Act is a Special Act which will override the general provisions as contained in the Code of Criminal Procedure, 1973 (in short Cr.P.C). The revisionist/complainant had thus only a remedy in preferring an appeal under Section 29 of The D.V Act against impugned order and the revision petition u/s 397 Cr.P.C is not maintainable. In these circumstances, when a statutory right of filing an appeal is given to the petitioner as per Section 29 of D.V. Act, then any revision petition u/s 397 Cr.P.C against the impugned order under D.V. Act is not maintainable. My views are substantiated by the judgment of Hon'ble Delhi High court in case of Smt. Maya Devi ( Supra ) wherein the Hon'ble Delhi High court inter alia held as under
: ......5. Section 29 of The Act provides for 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.
6. When specific remedy by way of appeal or by way of alteration, modification or revocation of any order, CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 6 of 9 has been provided under the Act, prima facie, the present petition under Article 227 of the Constitution of India, or Section 482 Cr.P.C is not maintainable before this court.
7. It has been laid down in various judicial decisions by this Court as well as by the Apex Court that where the specific remedy is open to the party under specific Act, the High court will not interfere under Section 482 of Cr.P.C. In case of N.P. Ponnuswami V. Returning Officer, Namakkal Constituency and Others., 1952 SCR 218, the Apex Court has laid down that : "Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed off."
8. Here, in the case in hand, the Act under which the Magistrate has passed the impugned order, specifically provide the remedy by way of appeal or by way of modification, alteration etc.
9. So, admittedly the petitioner has got alternative remedy under the Domestic Violence Act which she CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 7 of 9 has not availed of and has straightway approached this court.
10. Under these circumstances, the present petition is misconceived and is not maintainable and same is hereby dismissed with costs of Rs. 2,500/ .
My views are further substantiated by the Judgment dated 09.01.2013 of the Hon'ble Madurai Bench of Madras High court in Crl. R.C (MD) No. 287 of 2012 and M.P. ( MD) No. 1 of 2012 in matter titled as Arivazhagan Vs. M.Uma & Others and the judgment dated 08.01.2013 of the Hon'ble Madurai Bench of Madras High court in Criminal revision Case (MD) No. 482/2012 and M.P. (MD) No.1 of 2012 in case titled as K. Rajendran & Anr Vs. Ambikavathy & Anr.
8. It is further pertinent to note that Section 28(1) of D.V. Act which was referred to by the ld counsel for the revisionist during the arguments also starts with the words ' Save as otherwise provided in this Act.' It is thus evident that the provision of 'Appeal' which has specifically been provided in Section 29 of The D.V. Act will override CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 8 of 9 the section 28(1) of D.V. Act and only an Appeal is maintainable against the order made by the Magistrate under the D.V. Act as provided u/s 29 of The D. V. Act. In the result, it is held that the present Criminal Revision Petition u/s 397 Cr.P.C as preferred by the Revisionist/ Complainant is not maintainable as an Appeal u/s 29 of D.V. Act should have been preferred against the impugned order.
9. In view of the above discussion, the present revision petition is dismissed as not maintainable.
10. The copy of the present order be sent to the ld trial court and the revision file be consigned to record room.
Announced in the open
Court on 20.02.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE04
PATIALA HOUSE COURTS/NEW DELHI
CR no. 219/2/14 Sandhya Tewary Vs. Capt. Rajender Tewary & Ors. page 9 of 9