Himachal Pradesh High Court
Julfan vs . Shabnam And Another on 25 June, 2024
1 Julfan Vs. Shabnam and another .
Cr.MMO No. 495 of 2024 Reserved on: 13.06.2024.
25.06.2024 Present: Mr. Servedaman Rathore, Advocate, for the petitioner.
The present petition has been filed under Section 482 of Cr.P.C. for quashing and setting aside the order dated 17.01.2024, passed by learned Additional Principal Judge, Family Court District Sirmour, H.P. (learned Trial Court), vide which the defence of petitioner (respondent before learned Trial Court) was struck off in a case filed under Section 125 of Cr.P.C.
bearing case No. 67 of 2022, titled Shabnam Vs. Julfan.
2. Learned counsel for the petitioner relied upon the judgment of the Division Bench of Allahabad High Court in Deepak vs Reena 2023:
AHC:219268-DB to submit that the right of the appeal and revision provided under Section 19 of the Family Courts Act, 1984 are limited and do not extend to interlocutory orders. The aggrieved person has to file appropriate proceedings for challenging such orders. In the ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 2 present case, the order passed by the learned Trial .
Court is interlocutory and cannot be assailed under Section 19 of the Family Courts Act and the same had to be challenged by filing a petition under Section 482 of Cr.P.C.
3. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
4. It was laid down by the Patna High Court in Mohd. Akil Ahmad v. State of Bihar, 2016 SCCOnLine Pat 10310 that Section 10(2) of Family Courts Act provides that the provisions of Cr.P.C. or the Rules made therein shall apply to the proceedings under Chapter IX of the Cr.P.C. before a Family Court. This Section makes the provision of Cr.P.C. applicable to the Family Court but not to the High Court. Hence, a petition under Section 482 of Cr.P.C. does not lie before the High Court and the remedy of the person is to file a petition under Article 227 of the Constitution of India. It was observed:-
"18. From a bare reading of Section 10(2) of the Act, it appears that the provisions of the Criminal Procedure Code, 1973 or the rules made thereunder are made applicable to the proceedings under Chapter-IX of the Code, only before a Family Court.::: Downloaded on - 25/06/2024 20:32:43 :::CIS 3
Therefore, in terms of sub-section 2 of Section 10 .
of the Act, the provisions of the Code of Criminal Procedure are not applicable before the High Court to test the propriety and correctness of any order passed under the proceedings of Chapter-IX of the Code, by a Family Court. An appeal against the judgment or order of the Family Court is filed before the High Court in terms of Section 19(1) of the Act, not under theprovisions of Code of Criminal Procedure; similarly, a revision application is filed against an order of the Family Court, relating to proceedings of Chapter-IX of the Code, under Section 19(4) of the Act not under the provisions of Code of Criminal Procedure.
Therefore, the application of provisions of the Code of Criminal Procedure is confined only to the Family Court in the proceedings under Chapter IX of that Code.
19. It is worth to take notice of Section 20 of the Family Courts Act, which reads thus:--
"20. Act to have an overriding effect.-- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act."
20. From the conjoint reading of Section 10 and Section 20 of the Act, we are of the view that the inherent power of the High Court under Section 482 of the Code cannot be invoked, against the order granting interim maintenance under Section 125 of the Code since the applicability of provisions of the Code of Criminal Procedure is confined only before the Family Court under the proceedings of Chapter-IX of the Code.
21. Now the question remains as to whether the petitioner who is aggrieved by the order dated 10.2.2016, granting interim maintenance to ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 4 opposite party no. 2 is remediless under the law.
.
The answer is in the negative.
22. Under a similar situation a Full Bench of this Court had to determine the issue:"Whether an appeal would be available under Section 19(1) of the Family Courts Act, 1984 against an order passed under Section 24 of the Hindu Marriage Act, 1955?"
This Court while delivering judgment, reported in AIR 2010 Pat 184, held that an order passed by the Family Court, being interlocutory in nature, would, be amenable to the writ jurisdiction under Article 227 of the Constitution of India.
23. We would also like to refer to a decision of this Court reported in (1990) 2 PUR 693, rendered by a larger Bench of this Court. In the said decision, Their Lordships, in paragraph 16, held as under:
"16. Whether the High Court exercise such power of superintendence only when no appeal or revision has been provided under the Code against orders passed by such criminal courts or even in cases where the persons concerned have availed the remedy provided under the Code for setting aside such orders? It may be urged that in the aforesaid two Full Bench decisions of this Court and the case of Chandra Shekhar Singh (supra) before the Supreme Court, no internal remedy by way of appeal or revision had been provided, rather there was a bar so far exercise of appellate or revisional power of this Court under the old Code is concerned, in my view whether a bar has been placed or not on exercise of the appellate or revisional power under the Code itself is not of much consequence so far as the power of this Court under Article 227 of the Constitution is concerned. But there may be three situations under which the power under Article 227 may be invoked. Firstly, where no appeal or ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 5 revision has been provided against the order .
in question, secondly, where the person aggrieved has already filed a revision application before Sessions Judge and his revision application to this Court against the order passed by the Sessions Judge is barred under Section 397(3) of the Code. The third eventuality may be where although a revision application or an application under Section 482 of the Code is maintainable before this Court, still an application under Article 227 is filed. In my view, there is no question of exercise of power under Article 227 in the third category of cases, the remedy being available to the petitioner under the provisions of the Code itself. So far the cases falling in the first category i.e., where no appeal or revision has been provided as has been said by the Supreme Court, it will require an exceptional case before power under Article 227 is to be exercised. In respect of the cases coming under the second category i.e., the revision application has already been dismissed by the Sessions Judge, and bar under Section 397(3) is applicable for interference under Article 227, very exceptional circumstances must exist in view of the judgment of the Supreme Court in the case of Jagir Singh (supra)".
24. In view of the discussions made above, we are of the view that the only remedy, available to the petitioner, is to make an application under Article 227 of the Constitution of India before this Court, if he is so aggrieved by the order of the interim maintenance dated 10.2.2016 passed by the Principal Judge, Family Court, Munger.
25. Therefore, this application is not maintainable, and is accordingly, dismissed with the liberty to the petitioner, to file an appropriate application before this Court under Article 227 of the Constitution of ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 6 India.
.
5. Allahabad High Court on the other handheld in Durgawati Devi v. Muktinath Tiwari, 2020 SCC OnLine All 2190 that proceedings under Section 125 of Cr.P.C.
are governed by the criminal procedure. It was observed:
"4. On a bare perusal of Section 7(1), the Court finds that the Family Court, subject to other provisions of the said Act, has been vested with jurisdiction exercisable by any District Court or any Sub-ordinate 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 for this purpose, it is deemed to be a District Court or as the case may be such sub-ordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Clause
(a) to (g) mentions the suits and proceedings referred to in Section 7(1)(a). Clause (f) of an explanation to Section 7(1) refers to a suit or proceeding for maintenance. The suit or proceeding for maintenance referred to in Clause
(f) however is distinct from the proceedings for maintenance under Sections 125 and 127, of Chapter IX Cr. P.C. 1973, This is evident from the fact that the latter proceedings are separately dealt with and are separately mentioned in Subsection 2 of Section 7. Therefore, reference to suit or proceedings for maintenance in Clause (f) of the explanation to Section 7(1) appears to be a reference to such proceedings under the Hindu Adoption and Maintenance Act, 1956 or the Hindu Marriage Act, 1955. If the said provision included the proceedings for maintenance under Sections 125 and 127, then the legislature would not have mentioned the latter proceedings ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 7 separately under sub-section (2) of Section 7.
.
5. Now as per Section 7, a Family Court, subject to other provisions of the Act, shall have and exercise also as jurisdiction exercisable by the 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) and such other jurisdiction as may be conferred on it by any other statute. The distinction between the two jurisdictions, one mentioned in Section 7(1) and the other in sub- section (2) of Section 7, is thus clear from the scheme of the Act itself. Now the question is as to what is the procedure to be applied to these two jurisdictions and the proceedings arising therefrom, especially in the context of the transfer of proceedings under Sections 125 and 127, Cr. P.C. 1973 pending before the Family Court i.e. whether an application under Section 24, CPC will apply or an application under Section 407, Cr. P.C. will apply or for that matter, any other remedy would be available in this regard. In this context when the Court peruses Section 10, which describes the procedure generally to be followed by the Family Court, it is revealed that Sub-section 1 thereof, which is subject to other provisions of the Act and the Rules, says that the provisions of the CPC, 1908 and of any other law for 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), before a Family Court, and for the purposes of application of the CPC, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Now the said provision itself makes it very clear that the CPC applies to suits and proceedings other than the proceedings under Chapter IX of the Cr. P.C. Thus Cr. P.C. is excluded from application to suits and proceedings ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 8 referred to in Section 10(1) which is obviously a .
reference to the suits and proceedings mentioned in Section 7(1) read with clause (a) to (g) of the explanation to it. The provision itself excludes the application of CPC to proceedings under Chapter IX Cr. P.C.
6. Sub-section (2) of Section 10, which is again subject to the other provisions of the Act and the Rules, says that the provisions of the Cr. P.C. or the rules made thereunder, shall apply to the proceedings under Chapter IX Cr. P.C. before a Family Court. Thus Cr. P.C. applies to proceedings under Chapter IX. It being so, a logical corollary of it is that, for the transfer of any proceedings under Sections 125 and 127, Cr. P.C. which fall under Chapter DC Cr. P.C. the Cr. P.C. applies. Section 407, Cr. P.C. contains a provision which empowers the High Court to transfer any particular case from a Criminal Court subordinate to its authority to any other criminal Court of equal or superior jurisdiction. The High Court may act either on the report of the lower Court or the application of the party interested or its initiative. In the instant case a transfer is being sought from the Family Court, Faizabad to the Court of Principle Judge Family Court, Ambedkar Nagar is outside the sessions division hence an application will lie before the High Court.
7. Now from the bare perusal of Section 10(1), it is evident that the Family Court is deemed to be a Civil Court for me purposes of suits and proceedings governed by the CPC and not for the purposes of proceedings under Chapter IX of the Cr. P.C. as has already been discussed herein above. So far as proceedings under Chapter IX of the Cr. P.C. are concerned, the Family Court exercises jurisdiction exercisable by the Magistrate of the first class under the Code of Criminal Procedure, therefore, this Court is of ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 9 the view that Section 407 would apply for .
transfer of proceedings under
Sections 125 and 127, Cr. P.C. as they are
contained in Chapter IX, Cr. P.C.
8. The contention of the learned counsel for the petitioner's application under Section 24, CPC would be maintainable in the facts and circumstances of the case is thus unacceptable.
9. The fact that the proceedings under Section 125 Cr. P.C. have been held by the Supreme Court to be essentially of a Civil nature does not make much of a difference so far as the applicability of the provisions of CPC or Cr. P.C. to such proceedings are concerned as this is an aspect which is governed by the provisions contained in the Act, 1984 itself as already discussed. As per sub-section (2) of Section 10 the Code of Criminal Procedure applies to proceedings under Sections 125 and 127, Cr.
P.C. The Counsel could not point out any other provisions in the Act or the Rules, in the Act, 1984 or the rules made thereunder if any, which could persuade the Court to take any other view of the matter.
10. Even as per the judgment in Mohammad Nadeem (Supra) provisions of CPC have not been made applicable to proceedings under Chapter IX and there is nothing therein which could persuade this Court to hold otherwise. The ratio of the said judgment on the issue as to whether an appeal would lie under Section 19 of the Act, 1984 or remedy under the provisions of any other law for the time being in force like Cr. P.C. CPC and Hindu Marriage Act, is available, does not have any bearing so far as the question involved in this application is concerned. The question here is as to whether, for transfer of proceedings under Sections125and127,CPCwill ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 10 apply orCr. P.C.will apply. From a bare perusal of .
subsection (2) of Section 10, as already discussed, and for the reasons already given it is Cr. P.C. which applies and it contains a provision for the transfer of such proceedings under Section 407 thereof.
11. In the aforesaid case of Nadeem there was a specific remedy against the orders of the Family Court by way of an appeal under Section 19(1) of the Act, 1984, therefore, the provisions of the CPC and the Cr. P.C. was held to be inapplicable but the said reasoning does not r apply in this case in view of the unambiguous provision of the Act, 1984 itself in this regard as noted hereinabove, which permits the applicability of Cr. P.C. to proceedings under Chapter IX, Cr. P.C. This is also the view taken by a co-ordinate Bench of this Court in the Case of Durga Prasad v. Family Judge, Bareilly, (1998) 33 ALR 536: 1998 AIHC 3902 (All). In view of the aforesaid discussion, it is not necessary to go into the question as to whether the remedy will lie under Article 227 of the Constitution of India as suggested by some of the learned Counsels, as this would be the case only if there was no remedy available in the Cr. P.C.
6. A Single Bench of Karnataka High Court held in K. P. Balaji Singhvs Smt. Lakshmamma 1989 STPL 1159 Karnataka 2022 that the proceedings under Section 125 of Cr. P.C. are in the nature of Civil Proceedings but they are governed by Code of Criminal Procedure. Hence, a petition under Section 482 of Cr.P.C. will be maintainable to quash such proceedings. It was observed:
::: Downloaded on - 25/06/2024 20:32:43 :::CIS 1116. In T.V. Satyanarayana v. Subba Aruna .
Meenakshi, ILR (1988) Kant 1074, it was held that an interlocutory order made under S.24 of the Hindu Marriage Act amounts to a 'judgement', but the very fact that it is an interlocutory order makes it non-appealable in view of the words of S.19(1) of the Act and that in view of Sub-Sec. (4) of S.19 of the Act, the appeal cannot even be permitted to be converted into a revision petition, as in view of Sub-Sec. (4) of S.19 of the Act, no appeal or revision except to the extent provided under Sub-Sec. (1) of S.19 of the Act lies to the High Court.
17. It is thus clear that the petitioner cannot challenge the order date. 6-8-1988 made by the Additional Judge. Family Court, Bangalore either by preferring an appeal under S.19(1) of the Act, or by filing a Revision Petition under S.115 of the Civil P.C.
18. In view of the mandate in S.19(4) of the Act, the petitioner cannot prefer any revision against the order under the Code.
19. It is provided by S.10(2) of the Act that subject to the other provisions of the Act and the Rules, the provisions of the Code or the Rules made thereunder shall apply to the proceedings under Chapter IX of the Code before a Family Court. It may not be difficult to hold that in proceedings instituted under S.125 of the Code, the Family Court has to follow the procedure prescribed in respect of maintenance proceedings in the Code and the Rules made thereunder, of course, subject to the provisions of the Act and the Rules. It is also relevant to notice in this context S.18(2) of the Act. S.18(2) provides that an order passed by a Family Court under Chapter IX of the Code shall be executed in the manner prescribed for the execution of such order by the Code.
20. The fact to be noticed is that the Family Court while dealing with a petition under S.125 of the Code, has subject to the provisions of the Act and ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 12 the Rules, to follow the procedure prescribed in .
the Code and the Rules made thereunder and that while executing an order passed by it under Chapter IX of the Code, it has to follow the procedure prescribed for the execution of such order in the Code.
21. Having regard to the fact that the proceedings under S.125 of the Code are wholly governed by the Code, the fact that the petitioner is not provided with a remedy to assail the legality, propriety, correctness of the (interlocutory) order under the provisions of the Act and taking into consideration the provisions contained in Ss.10(2) and 18(2) and rother provisions relating to appeal and revision, of the Act, the fact that a litigant can invoke the jurisdiction of the High Court to quash the proceedings in an appropriate case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice, it is my considered view that the petitioner can invoke the inherent jurisdiction of the High Court under S.482 of the Code. There appears to be no other provision of law by which the petitioner can seek the relief sought in the petition.
7. A Full Bench of Madras High Court held in Rajesh Shukla v. Meena, 2005 SCC OnLine MP 214 held that proceedings under Section 125 Cr.P.C. are governed by Criminal Procedure Code and any person aggrieved by any order passed in such proceedings, will have to file a criminal revision and not a civil revision. It was observed:
From bare perusal of sub-section (2) of Section 7 of the Act, it is apparent that jurisdiction exercisable by a Magistrate First Class under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 13 relates to the maintenance of wife, children and .
parents. Thus, under Sub-Section (2) of Section 7, the Family Court exercises the jurisdiction of Magistrate First Class under Chapter IX of the Code of Criminal Procedure (hereinafter, referred to as the "Code"). Section 8 relates to the exclusion of jurisdiction and pending proceedings. Under clause (b) of Section 8 no Magistrate, shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code. So powers of a Magistrate under Chapter IX of the Code can be exercised at a place where the Family Court is established by the Family Court only and not by other Judicial Magistrates of the district.
Section 10 of the Act provides for the procedure. Sub-Section (2) of Section 10 provides that subject to the other provisions of this Act and the rules, the provisions of the Code or rules made there under, shall apply to the proceedings under Chapter IX of the Code before a Family Court. Sub-Section (2) of Section 18 of the Act provides that an order passed by a Family Court under Chapter IX of the Code shall be executed in the maimer prescribed for the execution of such order by that Code. From a perusal of the scheme of the Act, it is clear that the Family Court exercises two types of powers. Cases except the case under Chapter IX of the Code are decided by the Family Court as a District Court. The Family Court while dealing with the proceedings under Chapter IX of the Code Family Court exercises the jurisdiction of a judicial Magistrate First Class. In the circumstances, when orders have been passed in exercise of the provisions of the Code, revision before this Court under Section 19(4). of the Act can not be termed as Civil Revision. Proceedings are arising out of the Code, thus essentially final orders so passed will be revisable under Section 19(4) of the Act as Criminal Revision.
The jurisdiction of a Magistrate under Chapter IX of the Code is not strictly criminal. While passing ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 14 an order under that Chapter asking a person to pay .
maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a Civil Court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties.
Chapter IX of the Code does not in reality create any serious new obligation unknown to Indian Social Life. In Bhagwan Dutt v. Smt. Kamla Devi [(1975) 2 SCR 483 at 486 : ((1975) 2 SCC 386: AIR 1975 SC 83).], this Court has explained the object of Section 488, 489 and 490 of the Code of Criminal Procedure, 1898 which are replaced by the provisions in Chapter IX of the Code thus:"Section 488, 489 and 490 constitute one family. They have been grouped in Chapter XXXVI of the Code of 1898 under the caption "Of the maintenance of wives and children". This chapter, in the words of Sir James Fitzstephen provides "a mode of preventing "Vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destitute on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. Chapter IX of the Code provides for its procedure. Section 125 of the Code pertains to orders for the ::: Downloaded on - 25/06/2024 20:32:43 :::CIS 15 maintenance of wives, children and parents.
.
Section 126 of the Code provides the procedure for dealing with said application. Code of Civil Procedure Provides for proceeding ex parte in Civil cases, wherein there are no provisions for proceedings ex parte in criminal cases. The code does not provide for a review or change in the order once finally passed under Section 362 of the Code. However, unlike Section 362 of the Code, powers to alter or modify the maintenance is conferred upon the Court under Section 127 of the Code. Under Section 126 of the Code, power is conferred for setting aside ex parte order. Section 128 of the Code relates to the enforcement of an order of maintenance by the Magistrate. Thus, Chapter IX of the Code itself provides its procedure for grant of maintenance.
Another Full Bench of Kerala High Court in the case of Satyabhama v. Ramchandra [ [1998 (I) Crimes 143].], has considered the provisions of Section 7 of the Act as also Section 125 of the Code and after analysing the relevant provisions of the Act and Code held that the Family Court is a Court established with the jurisdiction of different nature, i.e., to say it has jurisdiction which is exercisable by the District Court and other Subordinate Courts to be exercised in accordance with the Code of Civil Procedure and jurisdiction exercisable by the Magistrate of a Criminal Court as per Section 6 of Chapter IX of the Code. It has been held that while exercising the jurisdiction under Section 7(2)(a) in accordance with the provisions of the Code, the Family Court can not be deemed or treated as a Civil Court. The Jurisdiction conferred under Section 7(2)(a) of the Act being one exercisable by a Magistrate who is a "Criminal Court" as per Section 6 of the Code and in accordance with the Code, we find no justification to accept. The contention that while exercising jurisdiction conferred under Section 7(2)(a), the Family Court acts as a Criminal Court and not as a ::: Downloaded on - 25/06/2024 20:32:44 :::CIS 16 "Civil Court".
.
In the case of K.A. Abdul Jaleel v. T.A. Shashida [ [(2003) 4 SCC 166].], the Apex Court has considered the object of enactment of the Act. It is held in Para 10 as under:--
"The Family Courts Act was enacted to provide for the establishment of family Courts with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, Inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouses or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them."
In the case of National Sewing Thread Co. Limited v. James Chadwick & Bros. Ltd. [ (AIR 1953 SC
357).], The procedure to be followed in the matter of special Act has been laid down. It is held that the procedure existing in the High Court should be followed. It is submitted by the parties that since the proceedings are under Section 125 of the Code, therefore, as per High Court Rules, it should, be heard as Criminal Revision. Reference was made to Clause 15 and Clause 16 of the Letters Patent of 1861 which includes a provision "or shall become subject to appeal to the said High Court by virtue of such laws and regulations relating to Civil Procedure as shall be hereafter made by the Governor General in Council. In this case, the question of proceedings under the Trade Marks Act was for consideration. Full Bench in Para 6 has held that the Act does not provide or lay down any ::: Downloaded on - 25/06/2024 20:32:44 :::CIS 17 procedure for future conduct or career of that .
appeal in the High Court though Section 77 of the Act provides that the High Court can if it likes make rules in the matter. Obviously, after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers ??? power in respect to the method and manner of exercising that jurisdiction. In this case,the question of procedure was considered and it was held that the procedure should be followed as per the Rules framed by the High Court.
In the case of Emperor v. Bhatu Sadu Mali [ (AIR 1938 Bom 225).] ,. Full Bench of Bombay High Court while considering the scope of the Code of Criminal Procedure, 1898 has held that applications in revision from an order under Section 476- B of the Code by a Civil Court to the High Court should be heard and decided by the High Court in accordance with the provisions of Section 439, Cr.PC and not under Section 115, CPC, When the order is passed under Section 476-B of the Code by the Civil Court, it is held that revision shall be decided under the provisions of Code of Criminal Procedure. In the case of Munna Lal v. State of U.P. [AIR 1991 All
189.]. Division Bench of the Allahabad High Court while considering the scope of Section 7 of the Act has held that the High Court has jurisdiction to exercise its powers under Section 24 of the Code of C vil Procedure for transfer of cases. Family Court is the Court and it exercises State's judicial power in a Judicial manner. In Para 4 of the judgment, Section 10 of the Act has often referred to Family Court has all the attributes and satisfying all the ingredients of a Court. It has been declared by Section 7 of the Act to be a District Court or Subordinate Civil Court to which provisions of the Code of Criminal Procedure and Code of Civil Procedure have been applied by Section 10 of the ::: Downloaded on - 25/06/2024 20:32:44 :::CIS 18 Act. It is further held that the High Court has power .
under Sections 22 to 24 of the Code of Civil Procedure to transfer cases relating to matters dealt with by explanation of sub-section (1) of Section 7 of the Act. Likewise, it has powers under Section 407 of the Code to transfer a case relating to Chapter IX of the Code.
Therefore, we answer the reference that since the powers of Judicial Magistrate First Class have been exercised by the Family Court for deciding applications under Section 125 of the Code, the 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 rules for hearing appeals and revisions arising out of the orders passed by the Family Court and its registration. The High Court may consider this matter on the administrative side.
8. Therefore, the majority of the High Courts have taken a view that the proceedings under Section 125 Cr.P.C. before the learned Family Court Act will be governed by the Code of Criminal Procedure even though the Family Court has all the trapping of a Civil Court. Therefore, the petition under Section 482 of Cr.P.C. will be maintainable against an interlocutory order, which is not amenable to revisional or appellate jurisdiction under Section 19 of the Family Courts Act.
::: Downloaded on - 25/06/2024 20:32:44 :::CIS 19 Cr.MP No. 2128 of 2024.
Put up for consideration on 02.07.2024.
(Rakesh Kainthla)
Judge
June 25th 2024
(ravinder)
r to
::: Downloaded on - 25/06/2024 20:32:44 :::CIS