# Ashu Jain v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 1039
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-17
- **Case number:** Application U/S 482 No. 15078 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashu-jain-v-state-of-u-p-ors-50721
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Sections 397 & 482 -
Family Courts Act, 1984 - Section 19 -
Maintainability - Application under Section 482
Cr.P.C. challenging order of Family Court under
Section 125 Cr.P.C. - Statutory remedy of
revision under Section 19 of the Family Courts
Act read with Section 397 Cr.P.C. available -
Inherent jurisdiction of the High Court under
Section 482 Cr.P.C. is wide but to be exercised
sparingly and in exceptional circumstances such
as lack of jurisdiction or manifest injustice - Not
to be invoked where efficacious statutory
remedy exists - Since applicant had already
preferred revision against the same order,
present application under Section 482 Cr.P.C.
held not maintainable - Dismissed.

Application dismissed.
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases Cited:

## Text

9 All. Ashu Jain Vs. State of U.P. & Ors.
1039
order, which is in contravention of the
provisions of section 82 of Cr.P.C.

25. This Court is of considered
opinion that, it cannot be said that every
person who is not present after the warrant
is issued, is an absconder, but the court,
who is issuing the proclamation under
section 82, has some reason to believe that
such person is absconding or concealing
him to avoid the execution of warrant. The
'reason to belive' is to be reduced in
writing, in nut and shell. The legislature in
its wisdom was cautious enough to
promulgate the provisions of proclamation,
which is an stringent provision and
therefore, the safeguards are also in-built,
in the provision itself. Thus, the paramount
importance of this provision must be
honoured and applied, so as to restrain any
sort of misuse of law, provided thereof.

26. In view of the above-noted
submissions and discussions, the orders
dated 31-1-2023 and the subsequent orders
passed by learned trial court in complaint
no. 2479 of 2019 (Mohd. Nasir Vs
Moqbool Hasan) U/S 138 N.I. Act P.S.
Aliganj District- Lucknow, are hereby set
aside.

27. The matter is remitted back to the
trial court concerned to proceed with the
trial, in accordance with the law adhering
the instruction, direction and guidelines
issued by the Apex Court and this Court,
time to time.

28. The applicant is directed that he
will cooperate with the trial proceedings
and he will remain present on each and
every date fixed before the trial court and
he will not seek any adjournment further,
unless
required
under unavoidable
circumstances.

29. It is clarified that if the applicant
further avoids the court proceedings, the
trial court is at liberty to take further course
of action, in accordance with law.

30. With the aforesaid observations
and directions, this application is hereby
allowed.
----------
(2023) 9 ILRA 1039
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Application U/S 482 No. 15078 of 2023

Ashu Jain ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Ms. Shruti Malviya

Counsel for the Opposite Parties:
G.A., Sri Amit Daga

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 397 & 482 -
Family Courts Act, 1984 - Section 19 -
Maintainability - Application under Section 482
Cr.P.C. challenging order of Family Court under
Section 125 Cr.P.C. - Statutory remedy of
revision under Section 19 of the Family Courts
Act read with Section 397 Cr.P.C. available -
Inherent jurisdiction of the High Court under
Section 482 Cr.P.C. is wide but to be exercised
sparingly and in exceptional circumstances such
as lack of jurisdiction or manifest injustice - Not
to be invoked where efficacious statutory
remedy exists - Since applicant had already
preferred revision against the same order,
present application under Section 482 Cr.P.C.
held not maintainable - Dismissed.

Application dismissed.
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases Cited:

1. Dhariwal Tobacco Products Ltd. Vs St. of
Mah., (2009) 2 SCC 370

2. Prabhu Chawla Vs St. of Raj., (2016) 16 SCC
30

3. Ashu Dhiman Vs Smt. Jyoti Dhiman, 2018
(Uttarakhand HC)

4. Rajendra Kumar Vs Smt. Rukhmani Bisen,
2022 (M.P. HC)

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Ms. Shruti Malviya, learned
counsel for the applicant, learned A.G.A.
for the State and Sri Amit Daga, learned
counsel for the opposite party No. 2.

2. Present application has been filed
with following prayer:-

"The
present
482
Cr.P.C.
application has been filed to quash the
order dated 03.03.2023 passed in Case No.
244/11 of 2015(Smt. Ashu Jain and others
Vs. Shri Ashu Jain) passed by Additional
Principal Judge, Family Court, Court No.
1, Muzaffar Nagar."

3. Sri Amit Daga, learned counsel for
the opposite party No. 2 has raised
preliminary objection and submitted that
applicant is having statutory remedy to file
revision under Section 19 of Family Courts
Act, 1984(hereinafter referred to as, 'Act,
1984') read with Section 397 of Code of
Criminal Procedure, 1973, (hereinafter,
referred to as, 'Cr.P.C.'), therefore this
application under Section 482 Cr.P.C. is
not maintainable.

4. Ms. Shruti Malviya, learned
counsel for the applicant though not
disputed the submission made by learned
counsel for the opposite party No. 2, but
submitted that though the revision is
maintainable against an order of Family
Court, but there is no absolute bar. In the
present case, applicant is also raising
question of fact, which is not possible in
revision, therefore, application may be
entertained.

5. She further submitted that Apex
Court in the matter of Dhariwal Tobaco
Products Ltd. and others Vs. State of
Maharashtra and another: 2009(2) SCC
370 and Prabhu Chawla Vs. State of
Rajasthan & Anr: (1977) SCC 551 has
considered this fact and is of the opinion
that an application under Section 482
Cr.P.C. is equally maintainable challenging
the order passed by Family Court.

6. Per contra, learned counsel for the
opposite party No. 2 submitted that in light
of Section 19 of Act, 1984, read with
Section 396 of Cr.P.C., except as provided
in Section 19 of Act, 1984, no appeal or
revision shall lie to any court from any
judgment, order or decree of the Family
Court. He also pointed out that against the
very
same
judgment/order
dated
03.03.2023, plaintiff/opposite party No. 2
has filed Criminal Revision No. 3148 f
2023, which is pending before this High
Court. Therefore, this application is not
maintainable and the only remedy available
to the applicant is to file criminal revision.
He placed reliance upon the judgments of
Uttarakhand High Court in Crl. Mis.
Application(C-482) No. 434 of 2018: Ashu
Dhiman Vs. Smt. Jyoti Dhiman, Madhya
Pradesh High Court in Misc. Criminal
Case No. 60364 of 2022: Rajendra Kumar
Vs. Smt. Rukhmani Bisen.

7. I have considered rival submissions
made by learned counsel for the parties,
9 All. Ashu Jain Vs. State of U.P. & Ors.
1041
perused the record as well as judgments
relied upon.

8. In the present case, this Court has
to decide, as to whether, against a final
order passed by the Family Court, instead
of filing criminal revision as provided
under Section 19 of Act, 1984, application
under Section 482 Cr.P.C. is maintainable
or not.

9. Brief facts of the case are that,
plaintiff/opposite party No. 2 has filed case
under Section 125 Cr.P.C. for payment of
maintenance, which was partly allowed
vide order dated 03.03.2023. As both the
parties are aggrieved by the said order,
therefore, plaintiff/opposite party No. 2 has
preferred Criminal Revision No. 3148 of
2023, whereas, defandant/applicant has
preferred
present
Application
Under
Section 482 Cr.P.C. challenging the very
same order.

10. Ms. Shruti Malviya, learned
counsel for the applicant has placed
reliance upon the judgments of Hon'ble
Apex Court in the matter of Dhariwal
Tobaco Products Ltd.(Supra).

11. From the perusal of the aforesaid
judgment, it is apparently clear that
undisputedly,
Court
may
entertain
application under Section 482 Cr.P.C., but
while entertaining the same it has to see as
to whether, matter is civil in nature and is
given cloak of criminal offence or there is
gross miscarriage of justice or lack of
jurisdiction. It has also been expressed by
the Court that inherent jurisdiction under
the section though wide has to be exercised
sparingly, carefully and with caution and
only when such exercise is justified by the
tests specifically laid down in the section
itself.

12. She also placed reliance upon the
judgment of Hon'ble Apex Court in the
matter
of
Prabhu
Chawla(Supra).
Relevant paragraphs of the said judgment
are quoted hereinbelow:

"10. The first question is as to
whether the inherent power of the High
Court under Section 482 stands repelled
when the revisional power under Section
397 overlaps. The opening words of Section
482 contradict this contention because
nothing of the Code, not even Section 397,
can affect the amplitude of the inherent
power preserved in so many terms by the
language of Section 482. Even so, a
general principle pervades this branch of
law when a specific rovision is made: easy
resort to inherent power is not right except
under compelling circumstances. Not that
there is absence of jurisdiction but that
inherent power should not invade areas set
apart for specific power under the same
Code. In Madhu Limaye v. The State of
Maharashtra this Court hasexhaustively
and, if I may say so with great respect,
correctly discussed and delineated the law
beyond mistake. While it is true that
Section 482 is pervasive it should not
subvert legal interdicts written into the
same Code, such, for instance, in Section
397(2). Apparent conflict may arise in
some situations between the two provisions
and a happy solution "would be to say that
the bar provided in sub-section (2) of
Section 397 operates only in exercise of the
revisional power of the High Court,
meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order. Then in accordance
with one or the other principles enunciated
above, the inherent power will come into
play, there being no other provision in the
Code for the redress of the grievance of the
aggrieved party. But then, if the order
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
assailed is purely of an interlocutory
character which could be corrected in
exercise of the revisional power of the High
Court under the 1898 Code, the High Court
will refuse to exercise its inherent power.
But in case the impugned order clearly
brings about a situation which is an abuse
of the process of the Court or for the
purpose of securing the ends of justice
interference
by
the
High
Court
is
absolutely
necessary,
then
nothing
contained in Section 397(2) can limit or
affect the exercise of the inherent power by
the High Court. But such cases would be
few and far between. The High Court must
exercise
the
inherent
power
very
sparingly. One such case would be the
desirability of the quashing of a criminal
proceeding initiated illegally, vexatiously
or as being without jurisdiction". In short,
there is no total ban on the exercise of
inherent power where abuse of the process
of the court or other extraordinary
situation excites the court's jurisdiction.
The limitation is self-restraint, nothing
more. The policy of the law is clear that
interlocutory orders, pure and simple,
should not be taken up to the High Court
resulting in unnecessary litigation and
delay. At the other extreme, final orders
are clearly capable of being considered in
exercise of inherent power, if glaring
injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J.
has pointed out as for example, where it is
more than a purely interlocutory order and
less than a final disposal. The present case
falls under that category where the accused
complain of harassment through the court's
process. Can we state that in this third
category the inherent power can be
exercised? In the words of Untwalia, J.:
(SCC p. 556, para 10). The answer is
obvious that the bar will not operate to
prevent the abuse of the process of the
Court and/or to secure the ends of justice.
The label of the petition filed by an
aggrieved party is immaterial. The High
Court can examine the matter in an
appropriate case under its inherent powers.
The present case undoubtedly falls for
exercise of the power of the High Court in
accordance with Section 482 of the 1973
Code,
even
assuming,
although
not
accepting, that invoking the revisional
power of the High Court is impermissible."
I am, therefore clear in my mind that the
inherent power is not rebuffed in the case
situation before us. Counsel on both ides,
sensitively responding to our allergy for
legalistics, rightly agreed that the fanatical
insistence on the formal filing of a copy of
the order under cessation need not take up
this court's time. Our conclusion concurs
with the concession of counsel on both
sides that merely because a copy of the
rder has not been produced, despite its
presence in the records in the court, it is
not possible for me to hold that the entire
revisory power stands frustrated and the
inherent
power
stultified."
In
our
considered view any attempt to explain the
law further as regards the issue relating to
inherent ower of High Court under Section
482 Cr.P.C. is unwarranted. We would
simply reiterate that Section 482 begins
with a non-obstante clause to state:
"Nothing in this Code shall be deemed to
limit or affect the inherent powers of the
High Court to make such orders as may be
necessary to give effect to any order under
this Code, or to prevent abuse of the
process of any Court or otherwise to secure
the ends of justice." A fortiori, there can be
no total ban on the exercise of such
wholesome jurisdiction where, in the words
of Krishna Iyer, J. "abuse of the process of
the Court or other extraordinary situation
excites
the
court's
jurisdiction.
The
limitation is self-restraint, nothing more."
9 All. Ashu Jain Vs. State of U.P. & Ors.
1043
We venture to add a further reason in
support. Since Section 397 Cr.P.C. is
attracted against all orders other than
interlocutory, a contrary view would limit
the availability of inherent powers under
Section
482
Cr.P.C.
only
to
petty
interlocutory orders! A situation wholly
unwarranted and undesirable.

In our considered opinion the
learned Single Judge of the High Court
should have followed the law laid down by
this Court in the case of Dhariwal Tobacco
Products Ltd. (supra) and other earlier
cases which were cited but wrongly
ignored them in preference to a judgment
of that Court in the case of Sanjay
Bhandari (supra) passed by another
learned Single Judge on 05.02.2009 in S.B.
Criminal Miscellaneous Petition No. 289 of
2006 which is impugned in the connected
Criminal Appeal arising out of Special
Leave Petition No. 4744 of 2009. As a
result, both the appeals, one preferred by
Prabhu Chawla and the other by Jagdish
Upasane
&
Ors.
are
allowed. The
impugned common order dated 02.04.2009
passed by the High Court of Rajasthan is
set aside and the matters are remitted back
to the High Court for fresh hearing of the
petitions under Section 482 of the Cr.P.C.
in the light of law explained above and for
disposal in accordance with law. Since the
matters have remained pending for long,
the High Court is requested to hear and
decide the matters expeditiously, preferably
within six months."

13. While dealing with the issue in the
aforesaid matter, Apex Court has relied
upon the Judgment of Dhariwal Tobaco
Products Ltd.(Supra), Court has made it
very clear that though the application under
Section 482 Cr.P.C. is maintainable, but in
a very special circumstance like criminal
proceeding initiated illegally or without
jurisdiction. Court has further clarified that
power under Section 482 Cr.P.C. may be
exercised in case glaring injustice stares the
court in the face.

14. So far as present case is
concerned, there is nothing extraordinary
circumstance and the only submission is
that applicant wants to raise certain factual
issues, which may not be entertained in
revision, therefore, Court may entertain the
application under Section 482 Cr.P.C. for
the convenience of applicant, which is not
permissible in light of interpretation made
by the Apex Court in the matter of
Dhariwal Tobaco Products Ltd.(Supra) as
well as Prabhu Chawla(Supra).

15. For initiating proceeding under
Section 125 Cr.P.C., procedure is provided
in the Act, 1984 and relevant provision is
Section 19 of Act, 1984, which is being
quoted hereinbelow:

"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 subsection shall apply to any appeal pending
before a High Court or any order passed
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

16. Section 19 of the Act, 1984
clearly provides about the provision of
appeal or revision only against the order or
decree of the Family Court. The law is
settled that special law shall prevail over
the general law. Therefore, in light of
provision under Section 19 of the Act,
1984, the only remedy before the applicant
is to file revision under Section 397 Cr.P.C.
in case the matter doesn't fall within the
exceptions provided by the Apex Court in
the matter of Dhariwal Tobaco Products
Ltd.(Supra)
as
well
as
Prabhu
Chawla(Supra).

17. Similar matter was before
Uttarakhand
High
Court
in
Ashu
Dhiman(supra) and the Court has taken the
same view. Relevant paragraph of the
aforesaid judgment is quoted hereinbelow:

"17. In view of the definition of
the interlocutory order and the ratio of the
judgment supra, this Court is of the view
that an order passed under Proviso to sub
section (1) of Section 125 of Cr.P.C.
rejecting or allowing an application for
maintenance, pending proceedings, is not
an interlocutory order which adjudicates
the rights of the parties to some extent. The
revision under Section 397 of Cr.P.C. is
maintainable. It has been held that such an
order is amenable to revisional jurisdiction
of this Court. The powers of High Court
under Section 482 of Cr.P.C. are inherent
in nature and could be exercised where
statutory remedy of appeal and revision
under the Cr.P.C. is not available. Thus, in
view of the findings recorded above that
revision
against
such
an
order
is
maintainable, an application under Section
482 of Cr.P.C. would not be maintainable.
The core issue framed by this Court to deal
with
the
controversy
is
answered
accordingly. Since the criminal misc.
applications filed by the applicant(s) under
Section
482
of
Cr.P.C.
are
not
maintainable, the applicant(s) would be at
liberty to avail the remedy of filing
revision, if so advised.

18. Again this issue was subject
matter before the Madhya Pradesh High
Court in Rajendra Kumar(Supra) and view
of the Court was again the same. Relevant
paragraph of the said judgment is quoted
hereinbelow:

"18. Considering the above legal
position, I am of the considered view that
9 All. Ram Kumar Vs. State of U.P. & Anr.
1045
order of maintenance affects right of a
person drastically and substantially, hence,
it cannot be treated as interlocutory order
and criminal revision should be preferred
under Section 19(4) of the Family Courts
Act against the order passed on the
application for interim maintenance by the
Family Court."

19. Therefore, in view of facts and
circumstances
of
the
case
as
well
judgments discussed hereinabove, present
application is not maintainable coupled
with the fact that Criminal Revision No
3148 of 2023 filed by opposite party No. 2
against
the
very
same
order
dated
03.03.2023, is pending before this Court.

20. Accordingly, application is
dismissed on the ground of maintainability.

21. Office is directed to return the
certified copy of the impugned order to
counsel for applicant after keeping photo
copy of the same on record.
----------
(2023) 9 ILRA 1045
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482 No. 24945 of 2023

Ram Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Satya Prakash Chaturvedi

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 344 & 482 -
Constitution of India,1950 - Article 226 -
Quashing of Proceedings for False Evidence -
Applicant, a government teacher and tahrir
writer for an FIR filed by his father, sought to
quash proceedings under Section 344 Cr.P.C.,
including
the
cognizance
order
dated
12.01.2023 and notice dated 18.05.2023,
arising from a sessions trial where accused
were acquitted. Applicant was alleged to have
given false evidence but contended he was a
formal witness, not present at the incident,
and merely wrote the tahrir as dictated. The
court held that the trial court's order dated
03.11.2022 failed to comply with mandatory
conditions
under
Mahila
Vinod
Kumari,
requiring an express opinion that the witness
intentionally gave false evidence and that
summary punishment was necessary in the
interest of justice. No evidence showed the
applicant willfully provided false St.ments. The
impugned
order
and
proceedings
were
unsustainable for non-compliance with these
conditions, constituting an abuse of process.
Application allowed, proceedings, cognizance
order, and notice quashed. (Paras 6-8)

Application allowed.

List of Cases Cited:

1. Lalit Kumar Sharma & anr. Vs St. of U.P.,
2009 LawSuit(All) 2058

2. Sanjay Baburao Gitte Vs St. of Mah., 2017
LawSuit(Bom) 2798

3. Mahila Vinod Kumari Vs St. of M.P., [2008] 10
SCR 869

4. Narayanswamy Vs St. of Mah., (1971) 2 SCC
182

(Delivered by Hon'ble Gajendra Kumar, J.)

1.

Heard
Mr.
Satya
Prakash
Chaturvedi,
learned
counsel
for
the
applicant and learned A.G.A. for the State.
Perused the record.