Patna High Court
Raj Kumar Sah vs State Of Bihar & Anr on 24 October, 2008
Equivalent citations: AIRONLINE 2008 PAT 3
Author: Chandramauli Kr.Prasad
Bench: Chandramauli Kr. Prasad, Ravi Ranjan
CRIMINAL REVISION No.321 OF 2008
(Revision against the order dated 26.2.2008 passed in M.R.No.6
of 1999 by Principal Judge, Family Court, Madhubani)
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RAJ KUMAR SAH---------------------------------Petitioner.
Versus
1. THE STATE OF BIHAR
2. RAM KUMARI DEVI -------------------Opposite Parties.
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For the Petitioner : Mr.Birendra Prasad Verma, Senior Advocate
Dr.Mrityunjaya Kumar Gautam, Advocate
Mr.Yogendra Kumar, Advocate
Mr.R.N.Ray, Advocate
Mr.Manish Kumar, Advocate
For the State : Mr.Parmeshwar Mehta, Addl.Public Prosecutor
For the Opposite Party No.2: Mr.Prabhakar Kumar, Advocate.
PRESENT
THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
THE HON'BLE DR. JUSTICE RAVI RANJAN
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Prasad, J: This application has come up for consideration
before us on a reference made by a learned Single Judge of this
Court.
Short facts giving rise to the present application are
that in exercise of the power under Section 125 of the Code of
Criminal Procedure, petitioner, who happens to be the husband
of one Ram Kumari Devi, was directed to pay maintenance at the
rate of Rs.250/- per month to her and Rs.150/- each for the two
children. Petitioner filed application dated 5.4.2004 under Section
125(4) of the Code of Criminal Procedure for recall of the said
order. Principal Judge, Family Court, Madhubani by order dated
26.2.2008passed in M.R.No.6 of 1999 rejected the said prayer.
Aggrieved by the same, petitioner filed this Criminal 2 Revision application under Section 397 and 401 of the Code of Criminal Procedure read with Section 19(4) of the Family Courts Act, 1984.
The Stamp Reporter objected to the maintainability of Criminal Revision application and observed that against an order passed by the Principal Judge, Family Court, Civil Revision would lie. For the aforesaid view, the Stamp Reporter relied on a judgment of the learned Single Judge in the case of Lata Devi & ors. Vs. Umesh Nandan Sharma [2006(4) PLJR 333]. Petitioner contested the stamp-report and contended that the Principal Judge, Family Court having rejected application filed under Section 125(4) of the Code of Criminal Procedure, Criminal Revision would lie. The matter came up for consideration before the learned Single Judge, who doubted the correctness of the judgment of this Court in the case of Lata Devi & Ors. (supra) and referred the matter for decision by a Division Bench. This is how the matter has come up before us for consideration.
Mr.B.P.Verma, Senior Advocate, appears on behalf of the petitioner, whereas opposite party no.2 is represented by Mr.Prabhakar Kumar. Mr.Parmeshwar Mehta, Additional Public Prosecutor, appears on behalf of the State.
We have heard them.
True it is that the objection of the Stamp Reporter is founded on the judgment of this Court in the case of Lata Devi (Supra). Neither the principle nor the precedents persuade me to 3 sustain the objection of the Stamp Reporter.
The contention raised necessitates examination of the scheme of the Family Courts Act, 1984 (hereinafter referred to as the „Act‟). It is apt to reproduce Section 19 of the Act, which reads as follows :
CHAPTER V [APPEALS AND REVISIONS] "19. Appeal.- (1) Save as provided in sub-
section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991.] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being 4 an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
It is relevant here to state that Chapter V consists of only one Section and the heading of the Chapter is appeals and revisions but the section per se does not use expression „revision‟, though Section 19(5) provides that no appeal or revision would lie, except as provided under the Act. From a plain reading of Section 19(2) of the Act, it is evident that no appeal shall lie from an order passed under Chapter IX of the Code of Criminal Procedure. Section 125, falls in Chapter IX of the Code of Criminal Procedure and in that view of the matter, no appeal shall lie from an order passed under Section 125 of the Code of Criminal Procedure. However, Section 19(4) of the Act confers power on the High Court to call for and examine the record of any proceeding against an order passed by the Family Court under chapter IX of the Code of Criminal Procedure for the purpose of satisfying itself as to the correctness, legality or propriety of the order. Section 19(4) of the Act does not use the expression „revision‟, but in view of the language of Section 19(4) of the Act and heading of Chapter V in which Section 19 finds place, we are of the opinion that an application under Section 19(4) of the Act against an order passed by the Family Court under Chapter IX of 5 the Code of Criminal Procedure has to be treated as revision. This revision application shall neither be a revision application under Section 397 of the Code of Criminal Procedure nor a revision under Section 115 of the Code of Civil Procedure, but a revision under Section 19(4) of the Family Courts Act.
In view of our conclusion aforesaid, the question which falls for our determination is as to whether an application filed under Section 19(4) of the Act against an order passed by the Family Court in an application under Section 125(4) of the Code of Criminal Procedure shall be registered as Civil Revision application or Criminal Revision application.
It is worth mentioning here that under the Rules of the court, the revision applications filed are either registered as Civil Revision application or Criminal Revision application. In order to come a just conclusion, I deem it expedient to refer to the scheme of the Act. Section 7 of the Act deals with the jurisdiction of the Family Court and the same reads as follows :
7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall -
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings 6 referred to in this sub-section are suits proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
From a conjoint reading of Section 7(1)(a)(b) of the Act, it is evident that a Family court has been conferred with all the jurisdiction exercisable by any district court or any subordinate Civil Court in respect of the suits and proceeding of 7 the nature specified in the explanation and the Family Court for the purpose of exercising such jurisdiction is to be treated as district court or subordinate Civil Court as the case may be. Section 7(2) of the Act confers power on the Family Court to exercise the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure.
As stated earlier, Section 125 of the Code of Criminal Procedure falls under Chapter IX of the Code. Under Section 7(1)(b) of the Act, the Family Court though having conferred with the power to exercise jurisdiction of a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, but Family Court exercising such power has not been described as a criminal court, but in my opinion that shall not make any difference. In my opinion, if the Family Court is not deemed to be a district court or a subordinate Civil Court and when it exercises power exercisable by a Magistrate of the First Class, it shall be just and proper to assume that it is exercising the power of a criminal court.
Thus from perusal of the scheme of the Act, I am of the opinion that the Family Court exercises two types of power, suits and proceeding except the proceeding under Chapter IX of the Code of Criminal Procedure are decided by the Family Court as a district court or a subordinate Civil Court and while dealing with the proceeding under Chapter IX of the Code of Criminal Procedure exercises the jurisdiction of the Judicial Magistrate 8 First Class. In the circumstances, when orders have been passed in exercise of the power of the Judicial Magistrate First Class, revision before this Court under Section 19(4) of the Act cannot be termed as Civil Revision. In my opinion, the orders passed under Chapter IX of the Code of Criminal procedure by a Family Court is revisable under Section 19(4) of the Act as a Criminal Revision.
It is relevant here to state that under Section 8(b) of the Act, where a Family Court has been established for any area, no Magistrate shall in relation to such area can exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure. Thus in an area where a Family Court has not been established, the power under Chapter IX of the Code of Criminal Procedure can be exercised by the Magistrate of the First Class and in such contingency Criminal Revision would lie before this Court under Section 397 of the Code of Criminal Procedure. In view of aforesaid, I find no justification to treat an application under Section 19(4) of the Act as Civil revision when the Family Court exercises the same power as that of the Magistrate. It is worthwhile mentioning that when Section 7(1)(b) treats Family Court as district court or subordinate Civil Court in respect of suits and proceeding mentioned in the explanation. I wonder how a proceeding under Chapter IX of the Code, which is not enumerated in the explanation, can be treated to be a civil proceeding. It is worth mentioning that the jurisdiction of a 9 Magistrate under Chapter IX of the Code of Criminal Procedure is not stricto senso a criminal jurisdiction as the Magistrate does not impose any punishment for commission of the crime, but it is a summary remedy for securing some reasonable sum by way of maintenance or alteration thereof.
Section 10 of the Act also leads to the same conclusion. Same reads as follows :
"10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil Court and shall have all the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."
From a plain reading of Section 10(1) of the Act, the provisions of the Code of Civil Procedure shall apply in the suits and proceedings, other than the proceedings under Chapter IX of the Code of Criminal Procedure, before a Family Court and a 10 Family Court is deemed a Civil Court with all the powers of such Court. The proceeding under Chapter IX of the Code of Criminal Procedure has specifically been excluded and, as such, the Family Court exercising the power under Chapter IX of the Code of Criminal Procedure cannot be deemed a Civil Court. However, Section 10(2) of the Act provides for application of the provisions of the Code of Criminal Procedure in a proceeding under Chapter IX of the Code before a Family Court and though the Family Court exercises the power of the Magistrate of the First Class, it cannot be equated with the Magistrate but certainly the Family Court does not exercise the power of the Civil Court in such circumstance but power conferred under Chapter IX of the Code of Criminal Procedure.
From the discussion aforesaid, what can safely be said that the Family Court while exercising the power under Chapter IX of the Code of Criminal Procedure is neither district court nor subordinate Civil Court. Thus on principle, I am of the opinion that a revision under Section 19(4) of the Act against an order passed under Chapter IX of the Code of Criminal Procedure is fit to be registered as a Criminal Revision application.
Now I deem it expedient to consider the precedent on this issue. A learned Single Judge of this Court in the case of Lata Devi & Ors vs. Umesh Nandan Sharma [2006(4) PLJR 333] had the occasion to consider this question and relying on a 11 Division Bench judgment of the Jharkhand High Court in the case of Nasreen Begum v. The State of Jharkhand and Ors. [2006 Cri.L.J. 326] held that revision under Section 19(4) of the Act deserves to be registered as Civil Revision application.
In the said case, the learned Single Judge has held as follows :
"7. Here, it would be seen that if either the Family Court was exclusively a Court of civil jurisdiction then without saving much, a civil revision under Section 115 of C.P.C. would lie. On the other hand, if it was a Court exercising criminal jurisdiction simpliciter under Cr.P.C. then a criminal revision would lie under Sections 397/401 of Cr.P.C. from an order passed by the Principal Judge, Family Court under Section 7(2)(a) of the Act but it is not so. The Legislature have clearly conferred power of superintendence and revisional jurisdiction on the High Court in matters which are dealt by the Family Court with respect to Chapter IX of the Cr.P.C. by so specifically providing in Section 19(4) of the Act. Therefore, in my view, an application filed in revision against an order of Family Court passed under Section 7(2)(a) of the Act, a revision would lie in its own right under Section 19(4) of the Act. The situation is similar to those relating to revision against an order of eviction passed following procedures as prescribed under Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act. Similar is the case here. Being an order passed in ordinary civil jurisdiction, it would thus, be a civil revision under Section 19(4) of the Act. I may refer in this connection to a judgment of the Division Bench of the Jharkhand High Court since reported in the case of Nasreen Begum @ Nasreen Khatoon vs. State of Jharkhand and Ors. (2006 Cri. L. J. 326) which clearly holds that Section 19(4) of the Act makes special provision of revision and in that case, the application was allowed to be converted into a civil revision. Reference may also be made to a Division Bench 12 judgment of the Karnataka High Court since reported in the case of Sateppa Basappa vs. Ku. Geetha (1999 Cri. L.J. 927) wherein their Lordships have held that it is neither a revision under C.P.C. nor a revision under Cr.P.C. stricto senso. It is a revision under Section 19(4) of the Act. I may also refer to a Full Bench decision of the Madhya Pradesh, High Court, full reports whereof is presently not available but has been noted in A.I.R. 2006 NOC 268 (ALL) wherein apparently their Lordships have held that an order with reference to Section 125 of Cr.P.C. is an order passed in exercise of criminal jurisdiction and, as such, a criminal revision would lie.
I am entirely an agreement with the conclusion of the learned Single Judge in the paragraph aforesaid that revision would lie against an order of the Family Court "in its own right"
under Section 19(4) of the Act but with deepest respect to the learned Judge I find myself unable to concur with his view that an order passed by the Family Court is "an order passed in ordinary civil jurisdiction". As observed earlier, Section 7(1)(b) of the Act treats the Family Court as a district court or a subordinate Civil Court for the suits and the proceeding mentioned in the explanation which does not include proceeding under Chapter IX of the Code of Criminal Procedure. In fact a proceeding under Chapter IX of the Code of Criminal Procedure had separately been mentioned in Section 7(2)(a) of the Act. Further under Section 10(1) of the Act, the provision of the Code of Civil Procedure has been applied in suits and proceeding, other than the proceeding under Chapter IX of the Code of Criminal Procedure, for exercise of the power by a Family Court and the 13 Family Court exercising such power is deemed to be a Civil Court. The proceeding under Chapter IX of the Code of Criminal Procedure has separately been dealt with under Section 10(2) of the Act and, as such, the order passed by a Family Court under Chapter IX of the Code of Criminal Procedure is not an order passed in ordinary civil jurisdiction. Thus the foundation to hold an application under Section 19(4) of the Act to be a Civil Revision application being erroneous, the conclusion arrived at by the learned Single Judge in the case of Lata Devi & ors. (supra) is not fit to be sustained and is accordingly overruled.
A Full Bench of the Madhya Pradesh High Court had the occasion to consider this question in the case of Rajesh Shukla vs. Meena Shukla [2005-Crimes-2-617] and on analysis of the scheme of the Act and the precedents on the subject came to the following conclusion :
"17. Therefore, we answer the reference that since powers of Judicial Magistrate, First Class have been exercised by the Family Court for deciding application under Section 125 of the Code, revision filed against the said order should be registered as Criminal Revision. Therefore, with respect to the judgment in the case of Aruna Choudhary (supra) we hold that correct law has not been laid down in this judgment. Revisions arising out of applications under Section 125 of the Code shall be registered as criminal revisions as they flow from the proceedings under the Code. However, it is for the High Court to frame Rule for hearing of appeals and revisions arising out of the orders passed by the Family Court and its registration. The High Court may consider this matter on administrative side."14
I am in respectful agreement with the reasoning and conclusion arrived at in the said judgment. I am of the opinion that the order passed by the Family Court in an application under Section 125 of the Code of Criminal Procedure, revision under Section 19(4) of the Act is fit to be registered as Criminal Revision.
Accordingly, I overrule the objection raised by the Stamp Reporter.
Now the matter shall be laid before the learned Single Judge for consideration on merit.
(Chandramauli Kr.Prasad, J.) Dr. Ravi Ranjan, J : I agree.
(Dr. Ravi Ranjan, J.) Patna High Court, Dated, 24th of October,2008.
AFR/Narendra/ 15