Delhi District Court
Shakeel Ahmed vs Ishrat Nisha on 7 September, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0167832015
Criminal Revision Number : 27/2/15
Shakeel Ahmed
S/o Bashir Ahmed
R/o Quarter no. 02, Servant Quarters,
Mizoram House,
Vibhu Saxena Marg,
Vasant Vihar, New Delhi. ...Petitioner/Revisionist
versus
Ishrat Nisha
W/o Sh. Shakeel Ahmed
R/o C191, Kusumpur Pahari,
Vasant Vihar, New Delhi. ...Respondent
Date of receipt of file in this Court : 07.09.2015
Date when arguments were heard : 07.09.2015
Date of Order : 07.09.2015
ORDER
1 The present order shall dispose of an issue regarding the maintainability of the present revision petition. 2 The present revision petition has been filed u/s 397 Cr.P.C by CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 1 of 6 the revisionist/husband against the impugned order dated 31.07.2015 as passed by Ld. MM01, Mahila Court, Saket Courts, New Delhi in complaint case No. 114/1 PS Vasant Kunj under Section 12 of The Protection of Women from Domestic Violence Act, 2005 ( in short D.V. Act ) in the matter titled as Ishrat Nisha Vs Shakeel Ahmed & Ors. Vide said impugned order the learned Trial Court closed the respondent evidence (revisionist in the present case). 3 I have heard the arguments on the maintainability of the present revision petition of the learned counsel for the revisionist and perused the revision file.
4 Learned counsel for the revisionist has argued that the revision petition is maintainable against the impugned order and that it has been filed within the limitation period.
5 The certified copy of impugned order dated 31.07.2015 is on record. As discussed above, the revisionist / husband has filed the present Criminal Revision u/s 397 Cr.P.C against the impugned order dated 31.07.2015 wherein the learned trial court closed the opportunity to lead evidence on behalf of the revisionist inter alia mentioning that already three - four opportunities had been given to the respondent (revisionist herein) to file the evidence by way of affidavit as per order dated 21.01.2015, last opportunity was given on the last date of hearing and she did not find any ground to give any further opportunity. 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 CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 2 of 6 disposed of after hearing the arguments of learned counsel for the revisionist 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".
6 It is evident that Section 29 of The D.V. Act provides an effective and an alternative remedy of filing of appeal by the revisionist/husband 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/husband 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 Vs The State of NCT of Delhi & Anr. (Delhi) 2007 (4) JCC 2819 wherein the Hon'ble Delhi High court inter alia held as under : ......5. Section 29 of The Act provides for appeal to CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 3 of 6 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, 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 CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 4 of 6 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 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.
7 It is thus evident that 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/ CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 5 of 6 husband is not maintainable as an Appeal u/s 29 of D.V. Act should have been preferred against the impugned order. 8 In view of the above discussion, the present revision petition is dismissed as not maintainable.
9 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 07.09.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE04
PATIALA HOUSE COURTS/NEW DELHI
CR no. 27/2/15 Shakeel Ahmed Vs Ishrat Nisha page 6 of 6