# Akhlesh Kumar Vaidhya Revisionist v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Criminal Revision No. 849 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhlesh-kumar-vaidhya-revisionist-v-state-of-u-p-ors-46923
- **Pages:** 5

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 -
Indian Penal Code, 1860 - Sections
498-A,
323,
504,
506
-
Dowry
Prohibition Act,1961 - Section3 / 4 -
To enforce the substantial issues of
civil law, the only remedy available is
in Civil Court, therefore, findings
recorded in proceedings under Section
125, Cr.P.C. are not final and parties
are always at liberty to agitate their
rights in Civil Court - Order under
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 125, Cr.P.C. does not finally
determine
the status, rights
and
obligations of the parties and it only
provides for maintenance of indigent
wives, children and parents. (Para - 7)

Wife of revisionist filed an application before the
family court under section 125 Cr.P.C. -
Revisionist has filed an objection against the
interim maintenance - Family Court awarded
interim maintenance to opposite party no. 2 and
3 (wife and son) - aggrieved by order of the
family court - revision has been filed by the
revisionist. (Para - 3)

HELD:- It is not permissible for the Court to
reappreciate the evidence. More so, there is
nothing on record to show that the findings of
facts recorded by the Family Court are perverse,
based on no evidence or have been arrived
contrary to the evidence on record.
There
is
no illegality or irregularity in the assessment of
the maintenance allowance so there is no
interference warranted in the order passed by
learned family court.(Para - 12,14)

Criminal Revision dismissed. (E-6)

List of Cases Cited:-

## Text

3 All. Akhlesh Kumar Vaidhya Vs. State of U.P. & Ors.
243
used any time to include any person in the
absence
of
description
in
the
first
information report to identify such person.
There is no assertion in respect of the
villages to which the additional accused
belong. Therefore, there is no strong or
cogent evidence to make the appellants
stand the trial for the offences under
Sections 147, 448, 294(b) and 506 IPC in
view of the judgment in Hardeep Singh
case [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] .
The
additional
accused
cannot
be
summoned under Section 319 of the Code
in casual and cavalier manner in the
absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required at
the time of framing of charge but which is
less than the satisfaction required at the
time of conclusion of the trial convicting
the accused."

27. To arrive at deserved satisfaction
for summoning a person as an additional
accused under Section 319 Cr.P.C., it
depends on the quality of the evidence
available on record. It is the duty of the
trial Court to consider the evidence
collected by the investigating officer during
the course of investigation and power under
Section
319 Cr.P.C.
should
not
be
exercised merely on statement of the
complainant or the witnesses who have
reiterated their statements recorded under
Section 161 Cr.P.C. during the course of
investigation
which
the
investigating
officer did not find credible and cogent on
the basis of other plethora of evidence
collected by him.

28. In the present case, learned trial
Court has not considered overwhelming
evidence collected by the investigating
officer during the course of investigation
which would demonstrate that the present
revisionist was not present at the time and
place of occurrence. I find order impugned
herein is unsustainable and against the law.
Thus, this revision is allowed and order
dated 3.03.2020 passed by the Addl
Sessions Judge, Court No.11, Hardoi in
S.T. No.111 of 2018: State vs Pawan Singh
and Ors. arising out of Crime No.267 of
2017 under Sections 452, 302, 504, 506
IPC, Police Station Kachauna, Hardoi is
hereby quashed.
----------
(2021)03ILR A243
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 849 of 2019

Akhlesh Kumar Vaidhya ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Devi Prasad Tripathi, Sri Manish Pandey

Counsel for the Opposite Parties:
A.G.A., Sri Babul Kumar Sharma, Sri Harish
Chandra Mishra

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 125 -
Indian Penal Code, 1860 - Sections
498-A,
323,
504,
506
-
Dowry
Prohibition Act,1961 - Section3 / 4 -
To enforce the substantial issues of
civil law, the only remedy available is
in Civil Court, therefore, findings
recorded in proceedings under Section
125, Cr.P.C. are not final and parties
are always at liberty to agitate their
rights in Civil Court - Order under
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 125, Cr.P.C. does not finally
determine
the status, rights
and
obligations of the parties and it only
provides for maintenance of indigent
wives, children and parents. (Para - 7)

Wife of revisionist filed an application before the
family court under section 125 Cr.P.C. -
Revisionist has filed an objection against the
interim maintenance - Family Court awarded
interim maintenance to opposite party no. 2 and
3 (wife and son) - aggrieved by order of the
family court - revision has been filed by the
revisionist. (Para - 3)

HELD:- It is not permissible for the Court to
reappreciate the evidence. More so, there is
nothing on record to show that the findings of
facts recorded by the Family Court are perverse,
based on no evidence or have been arrived
contrary to the evidence on record.
There
is
no illegality or irregularity in the assessment of
the maintenance allowance so there is no
interference warranted in the order passed by
learned family court.(Para - 12,14)

Criminal Revision dismissed. (E-6)

List of Cases Cited:-

1. Amur Chand Agrawal Vs Shanti Bose &anr.,
AIR 1973 SC 799

2. Orissa Vs Nakula Sahu, AIR 1979 SC 663

3. Akalu Aheer Vs Ramdeo Ram, AIR 1973 SC
2145

4. Karnataka Vs Appu Balu Ingele, AIR 1993 SC
1126 II (1992) CCR 458 (SC)

5. Pathumma & anr. Vs Muhammad, AIR 1986
SC 1436

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. This criminal revision has been
filed by the revisionist against the order
dated 3.7.2018 passed by learned Principal
Judge, Family Court, Jhansi in Case No.
338 of 2017 (Smt. Neelu and Others Vs.
Akhlesh) under section 125 Cr.P.C., Police
Station Babina, District Jhansi, whereby
application for interim maintenance in
aforesaid case has been allowed and
awarded Rs. 15,000/- (Rs. 10,000/- for wife
Smt. Neelu / opposite party no. 2 and Rs.
5000/- for her son Dhairya / opposite party
no. 3) per month as maintenance to
opposite party no. 2 and 3.

2. The facts of this revision emerges
as such that opposite party no. 2 / Smt.
Neelu has filed an application before the
Principal Judge, Family Court, Jhansi on
1.7.2017 under section 125 Cr.P.C. with
submission that revisionist / Akhlesh
Kumar Vaidhya and opposite party no. 2
have got marriage on 4.7.2013 according to
Hindu rituals and rites. At the time of said
marriage, on demand of family members of
the revisionist, father of opposite party no.
2 had given Rs. 10,00,000/- (Rs. Ten Lacs),
gold, silver and other household articles.
During substantiate of this wedlock, one
male child namely, Dhairya, born in
October, 2014. After some time the
revisionist
and
his
family
members
continuously harassing opposite party no. 2
on account of additional demand of dowry.
Being aggrieved with torture of the
revisionist
and
his
family
members,
opposite
party
no.
2
has
left
her
matrimonial house and since then she is
living at her parental home. Opposite party
no. 2 has lodged first information report
under sections 498-A, 323, 504, 506 and 3 /
4 of Dowry Prohibition Act on 13.5.2017 at
Police Station Babina, District Jhansi
against the revisionist and his family
members. Opposite party no. 2 has filed an
application before the family court, Jhansi
on 1.7.2017 under section 125 Cr.P.C. with
allegation that she is a household lady and
3 All. Akhlesh Kumar Vaidhya Vs. State of U.P. & Ors.
245
unable to maintain herself and her son so
she
claims
for
maintenance
of
Rs.
1,00,000/- for herself and Rs. 50,000/- for
her son / opposite party no. 3. During
pendecy of this application before the
family court an application for interim
maintenance was also filed by the opposite
party no. 2 on 7.4.2018 before the family
court. Revisionist has filed an objection
against the interim maintenance in which
he has stated that he is now unemployed
and out of job and anyhow he is surviving
his life. After hearing both the party, by
means of an order dated 3.7.2018, learned
Family Court, Jhansi awarded interim
maintenance to opposite party no. 2 and 3
as aforesaid and being aggrieved by order
of the family court, this revision has been
filed by the revisionist.

3. I have heard Sri Devi Prasad
Tripathi, learned counsel for the revisionist
and Sri Babul Kumar, learned counsel for
opposite party no. 2 as well as the learned
A.G.A.

4. Learned counsel for the revisionist
submits that learned trial court without
considering the ground taken by the
revisionist in his objection and also without
determining the income of the revisionist
and without assigning any reason, passed
the interim maintenance order dated
3.7.2018 by which Rs. 15,000/- per month
(Rs. 10,000/- for opposite party no. 2 and
Rs. 5000/- for opposite party no. 3) shall be
given to the opposite party no. 2 by the
revisionist.
Learned
counsel
for
the
revisionist further submits that marriage of
the opposite party no. 2 / Smt. Neelu was
solemnized with the revisionist according
to Hindu rituals and rites in very simple
manner without any demand of dowry. It is
further submits that opposite party no. 2 is
a women of rude nature and she always
quarreled with revisionist in Abu Dhabi
(U.A.E.) and due to her violent behavior,
revisionist has filed a divorce petition
under section 13 of Hindu Marriage Act on
16.3.2017 and being aggrieved with this
petition, opposite party no. 2 has lodged an
F.I.R. against the entire family member of
the revisionist including revisionist on
13.5.2017 under section 498-A, 323, 504,
506 I.P.C. and 3 /4 of Dowry Prohibition
Act. Learned counsel further submits that
revisionist is presently unemployed and
have no source of income while opposite
party no. 2 is earning Rs. 25,000/- per
month from tuition so she is fully able to
maintain herself and her son. Hence, she
required no maintenance. Learned family
court
without
considering
the
circumstances of this case wrongly allowed
the application of opposite party no. 2 and
award the interim maintenance in her
favour. Learned counsel for the revisionist
has raised issues that, (i) findings of facts
recorded by the Family Court are contrary
to the evidence on record and being
perverse, the same are liable to be set aside
and the maintenance fixed is too excessive.

5. Learned counsel for the respondent
no. 2 and learned A.G.A. have vehementaly
opposed the prayer of the revisionist by
submitting
that
at
the
present
time
revisionist is still doing his job in Abu
Dhabi (U.A.E.) but opposite party no. 2 has
no source of income and she is totally
depend upon her parents. Submission of the
revisionist that opposite party no. 2 is
earning Rs. 25,000/- per month from tuition
is hypothetical and it is only creation of
mind of the revisionist. It is further
contended that opposite party no. 2 have no
source of income except the maintenance
awarded by the court below but revisionist
has not made any single penny to the
opposite party no. 2 and 3 till date. Learned
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Family Court, Jhansi has passed the legal
order after considering entire facts and
circumstances as well as after perusing all
the records. Hence, submission of learned
counsel for the revisionist is devoid of
merits, so revision preferred by the
revisionist is liable to be quashed.

6. I have considered the rival
submissions made by the learned counsel
for the parties and the written submissions
filed on behalf of the revisionist.

7. The provisions of Section 125,
Cr.P.C. is to provide for a social justice
falling within the swim of Articles 15 (3) and
39 of the Constitution of India, which have
been enacted to protect the weaker section of
the society like women and children. It is in
the form of secular safeguard irrespective of
personal law of the parties. The object is to
compel a man to perform moral obligations
towards the society in respect of maintaining
his wife, children and old parents so that they
may not face destitution and become the
liability of the society or may be forced to
adopt a life of vagrancy, immorality and
crime for their subsistence or go astray. The
proceedings are summary in nature and
provide for a speedy remedy against
starvation of a deserted wife, children or
indigent parents. To enforce the substantial
issues of civil law, the only remedy available
is in Civil Court, therefore, findings recorded
in proceedings under Section 125, Cr.P.C. are
not final and parties are always at liberty to
agitate their rights in Civil Court. Order under
Section 125, Cr.P.C. does not finally
determine the status, rights and obligations of
the parties and it only provides for
maintenance of indigent wives, children and
parents.

8. The case requires to be considered
not only bearing in mind the aforesaid
proposition of law but also considering that
the powers of Revisional Court against
such an order are very limited for the
reason that in revisional jurisdiction the
Court satisfies itself as to the correctness,
legality and propriety of any finding,
sentence or order and as to the regularity of
the proceedings of the inferior Criminal
Court.

9. In Amur Chand Agrawal v. Shanti
Bose and Anr., AIR 1973 SC 799, the
Hon'ble Supreme Court has held that the
revisional jurisdiction should normally be
exercised in exceptional cases when there
is a glaring defect in the proceedings or
there is a manifest error of point of law and
consequently there has been a flagrant
miscarriage of justice.

10. In State of Orissa v. Nakula
Sahu, AIR 1979 SC 663, Hon'ble Supreme
Court, placing reliance upon a large
number of its judgments including Akalu
Aheer v. Ramdeo Ram, AIR 1973 SC
2145,
held
that
the
power,
being
discretionary,
has
to
be
exercised
judiciously and not arbitrarily or lightly.
The Court held that "judicial discretion, as
has often been said, means a discretion
which
is
informed
by
tradition
methodolised by analogy and discipline by
system".

11. In State of Karnataka v. Appu
Balu Ingele, AIR 1993 SC 1126=II (1992)
CCR 458 (SC), Hon'ble Supreme Court
held that in exercise of the revisional
powers, it is not permissible for the Court
to reappreciate the evidence. In Pathumma
and Anr. v. Muhammad, AIR 1986 SC
1436, the Apex Court observed that High
Court "committed an error in making a reassessment of the evidence" as in its
revisional jurisdiction it was "not justified
3 All. Chandra Shekhar Singh Vs. State of U.P. & Anr.
247
in substituting its own view for that of the
learned Magistrate on a question of fact".

12. If the instant case is examined in
view
of
the
aforesaid
settled
legal
propositions, it is not permissible for the
Court to reappreciate the evidence. More
so, there is nothing on record to show that
the findings of facts recorded by the Family
Court are perverse, based on no evidence or
have been arrived contrary to the evidence
on record.

13.

Maintenance
underSection
125includes expenses for food, clothing,
residence, medical and other expenses
relating to normal persuit of life and it has
certainly
no
bearing
from
starvation
maintenance so that the person maintained
is forced to lead an indignified life.
However,
Court
must
consider
that
awarding such amount should not render
the person liable to maintain a pauper.

14. It is admitted fact that there is no
source of income of her wife / respondent
no. 2, so she is unable to maintain herself.
She is living at her parental house due to
continuous harassment and demand of
dowry by the revisionist and his family
members.
Learned
trial
court
after
appreciating each and every fact awarded
the maintenance allowance of Rs. 15,000/-
(Rs. 10,000/- to opposite party no. 2 and
Rs. 5000/- to opposite party no. 3) in
favour of opposite party no. 2. Judgment of
the learned family court is well reasoned
and well discussed. There is no illegality or
irregularity in the assessment of the
maintenance allowance so there is no
interference warranted in the order dated
3.7.2018 passed by learned family court.

15. Revision is devoid of merit and
is accordingly dismissed with no cost.

16. Interim order, if any, stands
vacated.

17. A copy of this order be
communicated to the lower court for
necessary compliance.
----------
(2021)03ILR A247
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 3523 of 2019

Chandra Shekhar Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kameshwar Singh

Counsel for the Opposite Parties:
A.G.A.

(A)
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 397-calling for
recrods to exercise powers of revision,
Section
401-High
Court's
power
of
revision, Section 319-Power to proceed
against other persons appearing to be
guilty of offence, Indian Penal Code,
1860-Section 306, 120 -B-for the exercise
of power under Section 319 Cr. P.C.-use of
word "evidence" means material that has
come before the Court during an inquiry or
trial by it and not otherwise-If from the
evidence led in the trial court has also
committed the offence, it may summon
such person under Section 319 Cr.P.C.(Para
10)

Trial Court on the basis of oral statement of
witness-summoned the revisionist under section
319 Cr.P.C. to face trial-being aggrieved with
the said order this revisio has been filed by the
revisionist. (Para 3)