Delhi District Court
Ram Niwas Yadav vs The State on 18 August, 2018
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. ...../2016
IN THE MATTER OF:
Ram Niwas Yadav
S/o Late Shri Ram Mehar
R/o 87/413, Sec.-I, DIZ Area,
R.K. Ashram Mark, Goel Market, New Delhi ..........Appellant
VERSUS
1. The State
(Govt. of National Capital Territory of Delhi)
2. The Jammu & Kashmir Bank Ltd.,
(A company established under Jammu & Kashmir Companies Act XI
of 1977)
Having its Head Corporate Office
M.A. Road, Srinagar, State- Kashmir
3. The Jammu & Kashmir Bank Ltd.,
Bank Branch at Bhogal, New Delhi ............Respondents
Date of Institution on : 09.09.2016
Date of reserving on : Not reserved
Date of orders on : 16.04.2018
JUDGMENT
CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.1 of 9 IN THE COURT OF SHRI SANJEEV KUMAR, ADDITIONAL SESSION JUDGE-05, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI CRIMINAL REVISION NO. 334/2017 In the matter of:
Sh. Uday Kaul S/o Late Sh. Ravi Kaul R/o M-178, Ground Floor, Greater Kailash-II, New Delhi-110048 ..............Revisionist VERSUS
1. Ms. Kamayani Kaul W/o Sh. Uday Kaul
2. Master Karman Kaul S/o Sh. Uday Kaul Digitally signed by Both R/o M-178, Ground Floor, SANJEEV SANJEEV KUMAR Greater Kailash-II, KUMAR Date:
2018.08.18 16:46:30 New Delhi-110048 .............Respondents +0530 Date of reserving the order: 23.08.2017 Date of order : 18.09.2017 JUDGMENT
1. This revision petition has been filed by the revisionist Uday Kaul under Section 397 of the Code of Criminal Procedure (hereinafter referred to as the "Code") against the order dated 23.05.2017 passed by learned Mahila Court/Metropolitan Magistrate-
CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.2 of 9 01, South-East District, Saket Courts, New Delhi in CC No. 612350/2016 titled as "Kamayani Kaul v. Uday Kaul & Ors. whereby application filed on behalf of the respondent-complainant under Section 23 of the Protection of Women Against Domestic Violence Act, 2005 (in short "D.V. Act") was allowed directing the revisionist to pay an interim maintenance of a sum of Rs. 60,000/- per month to the respondent no.1/wife and Rs.15,000/- per month for the respondent no.2/minor son.
2. I have heard arguments on maintainability of revision, advanced by the learned counsel for the revisionist and respondents. The learned counsel for the respondents had submitted on 23.08.2017 that revision is not maintainable and therefore, argument on the maintainability of the revision was heard.
3. Shri Rahul Kriplani, learned counsel appearing for the respondents has submitted that under Section 29 of the D.V. Act, only appeal will lie against the order of learned Metropolitan Magistrate and no revision will lie and therefore, revision is not maintainable. He has placed reliance upon judgments namely, Amit Sundra & Ors. v. Sheetal Khanna, 2008, Cri LJ 66; Braham Pal Arya v. Babita Arya @ Kila Devi & Ors., 2009 (113) DRJ 624; S. Srikanth v. Divyalaxmi, (2013) 1 MWN (Cr.) 222; Md. Sabir Hussain v. State of West Bengal; (2011) 3 CHN 359; P. Kalpana v. R. Saravanan, 2016 SCC Online Mad 5373, Crl. R. C. No.271 of 2016; Mr. G. Balasubramanian v. Mrs. Jayashree Rajgopalan, Criminal Original Petition No.15455 of 2008; K. Rajendran v. Ambikavathy, Criminal CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.3 of 9 Revision Case (MD) No.482 of 2012 and M.P. (MD) No. 1 of 2012 and Mohd. Akber Yaseen v. Rizwana Sulthana, 2010 SCC Online AP 1146, LAWS (APH) 20107129.
4. Per contra, Shri Rajat Aneja, learned counsel appearing for the revisionist has submitted that there is no bar of filing of revision under D.V. Act. Appeal under Section 29 of D.V. Act will lie when the complaint/ application has been disposed off finally. There is no bar of revision but there are overlapping jurisdiction and therefore, revision is maintainable. He has placed reliance upon the decisions namely Rajeev Preenja v. Sarika & Ors., MANU/DE/1238/2009 ; Sunitha v. State of Kerala & anr., MANU/KE/2172/2010 and Kumar @ Stephen v. Jeniffer, Criminal Revision Case no. 1363 of 2014 passed by Hon'ble Madras High Court in support of his contention that in these cases revision petitions were entertained and disposed off by the different Hon'ble High Courts.
5. The respondents herein have filed application/complaint under Section 12 read with Section 18,19,20,22 and 23 of the D.V. Act before the learned Metropolitan Magistrate. Vide impugned order dated 29.05.2017, interim maintenance was granted to the respondents herein. Hence, this revision.
6. The controversy is that as to whether appeal lies or revision lies against the order on application under Section 23 of D.V. Act.
7. Section 29 of DV Act provides for appeal which reads as CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.4 of 9 under:
"29. Appeal - There shall lie an appeal to the Court of Session withing 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."
8. Present revision has been filed by the revisionist under Section 397 of the Code. Sub Section (4) of Section 401 of the Code provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. Hence, it is clear from this Section 401 (4) of the Code that where an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained. Section 29 of the D.V. Act clearly provides for appeal against the order made by the Magistrate.
9. In Amit Sundra's case (supra), Hon'ble Delhi High Court has observed that D.V. Act under which the Magistrate has passed the interim order, specifically provide the remedy by way of appeal or by way of modification, alteration etc. It was further observed that when specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act, prima facie, the present petition under Art. 227 of the Constitution of India, under these circumstances is not maintainable before this Court.
10. In Braham Pal Arya's case (supra), Hon'ble Delhi High Court CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.5 of 9 has held that against the order on application under Section 23 D.V. Act, an appeal under Section 29 of the said Act would be maintainable.
11. In Abhijit Bhikaseth Auti v. State of Maharashtra and Anr., 2009 CRI. L.J. 889 Bombay High Ourt categorically held that an appeal will lie against the order passed under Sub-section (1) and Sub- section (2) of the Section 23 of the said Act passed by the learned Magistrate.
12. In S. Srikanth's case (supra), Hon'ble Madras High Court has held that inasmuch as, as per Section 29 of the Act, the right of appeal is provided to the revision petitioner as against the order dated 10.02.2011 passed by the learned Judicial Magistrate, under Section 23 of the Act, this Court comes to an inescapable conclusion that the instant revision petition filed by the petitioner / husband (first accused) is per se not maintainable in the eye of law, because of the fact that the Special Act viz., 43 of 3005, overrides the general remedy provided under Criminal procedure Code.
13. In Md. Sabir Hussain's case (supra), Hon'ble Calcutta High Court has held that since the D.V. Act is a special staute providing any aggrieved person with appeal only under Section 29 of the Act against any order passed under this Act, no revisional application is maintainable under Section 401 of the Code of Criminal Procedure and High Court should not exercise its extra-ordinary jurisdiction under Section 482 of the Code of Criminal Procedure and thereby CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.6 of 9 quashing any proceeding pending in the Court of Magistrate, and aggrieved party in all the cases may prefer an appeal to the appropriate forum under Section 29 of the D.V. Act.
14. In G. Balasubramaniam's case (supra), it was argued that though an appeal is provided under Section 29 of the D.V. Act and that right of appeal is available only as against the final order and not against any interim order passed by the learned Magistrate. Hon'ble Madras High Court had not accepted the said contentions and held that a reading of Section 29 of the D.V. Act does not show that the right of appeal is restricted only in respect of a final order passed by the learned Sessions Judge and nowhere in the Act, it is stated that an appeal will not lie against any interim order passed by learned Magistrate. It is further held that a plain reading of Section 29 of the D. V. Act does not make any distinction between the final order and the interim order and therefore, an appeal will lie both against the final order an interim order passed by the learned Magistrate in the exercise of powers conferred on him under this Act.
15. In P. Kalpana's case (supra), Hon'ble Madras High Court has held that a combined reading of Section 29 of the D.V. Act and Section 372 of the Code would clearly show that as against the any order passes under D.V. Act, an appeal shall lie to the Court of Sessions and the criminal revision is not maintainable.
16. In K. Rajendran's case (supra), Hon'ble Madras High Court has held that the criminal revision petition will not lie in the eye of law CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.7 of 9 against the order passed by the learned Magistrate under the provisions of the D.V. Act.
17. In Mohd. Akbar Yaseen's case (supra), Hon'ble Andhra Pradesh High Court has held that the revision petition under Section 397 of the Code is not maintainable, because any order passed by the Magistrate is appellable under Section 29 of the D.V. Act.
18. Hence, it is clear from the Section 29 of the D.V. Act, Sub Section (4) of Section 401 of the Code and the judgments as discussed above, revision is not maintainable against the interim order passed by the learned Metropolitan Magistrate. So far as judgments relied upon by the learned counsel for revisionist is concerned, it has not been held in that judgments/decisions that revision against the interim order passed by the learned Magistrate under the provisons of the D.V. Act is maintainble. In those judgments relied upon by the learned counsel for revisionist, the issue of maintainability of the revision was not raised.
19. In view of above discussion, I am of the view that revision against the impugned order is not maintainable and hence, same is dismissed.
Announced in the open Court on 16.04.2018 (Sanjeev Kumar-II) Additional Session Judge-05, South East, Saket Courts, New Delhi CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.8 of 9 CA No.204803/2016 Ram Niwas Yadav v. The State & Ors. Page No.9 of 9