# Chiranjeev Kumar Arya Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 6 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-29
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chiranjeev-kumar-arya-revisionist-v-state-of-u-p-anr-44059
- **Pages:** 14

## Text

_Characters 0–39,924 of 42,866. This is a partial read: ask again with offset=39924 for what follows._

6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

227
 34. Let a copy of this judgment along with lower courts' record be sent back to the court
concerned.
----------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.06.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Criminal Revision No.- 879 Of 2015

Chiranjeev Kumar Arya ...Revisionist
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Revisionist:
Ranjana Srivastava, Ratnakar Rao, Vinay Tripathi

Counsel for Opposite Parties:
Govt. Advocate, Pankaj Tiwari, Shri Pal Singh Yadav

Criminal Revision - Maintainability - Protection of Women from Domestic Violence Act, 2005 -
Sections 12, 29 - Revisional Jurisdiction of High Court - Sections 397/401 Cr.P.C. - Concealment
of Material Facts - Fraud on Court - Advocate using false enrolment numbers - Reference to Bar
Council - Orders set aside and matter remanded.

Held:
A criminal revision against an appellate order passed by the Sessions Court under Section 29 of the Protection
of Women from Domestic Violence Act, 2005 is maintainable before the High Court under Sections 397/401
Cr.P.C., as the D.V. Act neither expressly nor impliedly excludes the revisional jurisdiction of the High Court.
The Sessions Court remains an inferior criminal court vis-à-vis the High Court.

Held further:
The mere absence of an express provision for revision in the D.V. Act does not confer finality upon the
appellate order passed under Section 29. In the absence of exclusion of Cr.P.C., the supervisory and revisional
powers of the High Court remain intact.

Held further:
Where the applicant-wife, while seeking maintenance under Section 12 of the D.V. Act, conceals material facts
regarding her profession, income, and financial capacity, such concealment amounts to fraud on the court.
Fraud vitiates all judicial proceedings, and any order obtained by suppression of material facts cannot be
sustained.

Held further:
Material on record showing that the wife is a regularly practicing Advocate with multiple bank accounts and
independent income requires fresh consideration of the issue of maintenance. Orders granting interim
maintenance without considering such material suffer from illegality.
228 INDIAN LAW REPORTS ALLAHABAD SERIES

Held further:
Use of false or borrowed enrolment numbers by Advocates, impersonation, and misuse of another Advocate's
identity constitute grave professional misconduct warranting strict action. Such acts undermine the purity of
the justice delivery system.

Directions:
(i) Orders passed by the Magistrate and the Sessions Court granting maintenance are set aside.
(ii) Matter is remanded to the Magistrate for fresh decision under Section 12 of the D.V. Act after
considering the entire factual matrix.
(iii) Matter referred to the Bar Council of Uttar Pradesh and Oudh Bar Association for disciplinary
action against erring Advocates.
(iv) Direction issued for lodging FIR for impersonation and identity misuse.
(v) Interim restraint imposed on the Advocate found using false enrolment numbers from
entering court premises till decision by the Bar Council.

Case Listed:-
Shalu Ojha vs. Prashant Ojha
Thakur Das (Dead) by Lrs. vs. State of Madhya Pradesh and another (AIR (1978) 1 SCC 27 )
Shafaat Ahmad vs. Smt. Fahmida Sardar, AIR 1990 All 182
Baiju and another vs. Latha and others
Saman Ismail vs. Rafiq Ahmad and another (2002 Cr.L.J. 3648)
Prabhunath Tiwari & another vs. State of U.P. and another
Arivazhagan vs. M. Uma and others
Mrs. Manju Sree Robinson & 2 others vs. State of U.P. and others
K.D. Sharma vs. Steel Authority of India Limited, (2008) 12 SCC 481
A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai
Sangam and others, (2012) 6 SCC 430

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

1. This revision has been filed by husband aggrieved with the order dated 02.09.2015
passed by Additional District & Sessions Judge, court No. 17, Lucknow under Section 29 of
Protection of Women from Domestic Violence Act, 2005 (in short 'the Act').

2. It appears that Prathama Singh claiming to be the wife of present revisionist filed an
application under Section 12 of the Act before learned Magistrate, Lucknow. Application was
allowed by learned Magistrate ordering Rs. 1000/- per month as interim maintenance. An appeal
was filed against said order by the wife of revisionist claiming maintenance @ Rs. 30,000/- per
month. Said appeal has been allowed by Additional Sessions Judge, Court No. 17, Lucknow on
02.09.2015. This very order has been challenged in revision.

3. I have heard Smt. Ranjana Srivastava, learned counsel for revisionist and Sri Pankaj
Tiwari, learned counsel appearing for respondent.

4. A preliminary objection has been raised by Sri Pankaj Tiwari that revision against the
order passed in appeal under Section 29 of the Act would not be maintainable. He has relied upon
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

229
the judgment of Hon'ble Apex court given in Criminal Appeal No. 2070 of 2014, Shalu Ojha vs.
Prashant Ojha in which Hon'ble Apex Court while discussing the scheme of D.V. Act in para-27
has been pleased to observe as under:

"It can be seen from the DV Act that no further appeal or revision is provided to the
High Court or any other Court against the order of the Sessions Court under Section 29."

5. Under Section 12 of the Act, application is filed before Magistrate. Magistrate has power
to pass protection order under section 18, residence order under section 19, monetary relief order
under Section 20, custody order under section 21 and compensation order under Section 22 of this
Act. Under Section 23 of the Act, Magistrate can pass ex-parte interim order as it deems fit and
proper. Appeal is provided under Section 29 of the Act. Section 28 provides that proceedings under
Sections 12, 18, 19, 20, 21, 22, 23 and offence made under section 31 shall be governed by the
Code of Criminal Procedure. Section 31 provides for penalty for breach of orders. Such offences
have been made non-cognizable and non- bailable under Section 32 of the Act. Section 29 of the
Act is being reproduced below:

"Section 29: There shall lie an appeal to 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, as the case may be whichever is later."

6. From the above it is apparent that orders passed by Magistrate are to be governed by the
procedure prescribed under Cr.P.C. and said order can be challenged in appeal before the court of
session. Court of session is admittedly an inferior/subordinate criminal court to High Court. Section
397 of Cr.P.C. enables High Court or session court to call for record of any proceeding from any
inferior criminal court.

7. Section 397 Cr.P.C. is being reproduced below:-

"Calling for records to exercise of powers of revision;- (1) The High Court or any
Sessions Judge may call for and examine the record of any proceeding before any inferior criminal
Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to
the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as
to the regularity of any proceedings of such inferior Court, and may, when calling for such record,
direct that the execution of any sentence or order be suspended, and if the accused is in
confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation- All Magistrates, whether Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the
purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in
relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
230 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) If an application under this section has been made by any person either to the
High Court or to the Sessions Judge, no further application by the same person shall be
entertained by the other of them."

8. Hon'ble Apex Court in the case of Thakur Das (Dead) by Lrs. vs. State of Madhya
Pradesh and another (AIR (1978) 1 SCC 27 ) while interpreting the provisions of section 6 of
Essential Commodities Act, 1955, has held in para-11, as under:

"We are accordingly of the opinion that even though the State Government is
authorized to appoint an appellate authority under Section 6C, the legislature clearly indicated
that such appellate authority must of necessity be a judicial authority. Since under the Constitution
the courts being the repository of the judicial power and the officer presiding over the court drives
his designation form the nomenclature of the court, even if the the appointment is made by the
designation of the judicial officer the appellate indicated is the court over which he presides
discharging functions under the relevant Code and placed in the hierarchy of courts for the
purposes of appeal and revision. Viewed from this angle, the Sessions Judge, though appointed an
appellate authority by the notification, what the State Government did was to constitute an
appellate authority in the Sessions court over which the Sessions Judge presides. The Sessions
Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior
criminal court in relation to High Court. Therefore, against the order made in exercise of powers
conferred by S. 6C. a revision application would lie to the High Court and the High Court would
be entitled to entertain a revision application under Sections 435 and 439 of the Code of Criminal
Procedure 1898 which was in force at the relevant time and such revision application would be
competent."

(Emphasis Supplied)

9. It is true that there is no provision in the Act providing further appeal or revision before
the High Court against the order passed by the Court of session in appeal under Section 29 of the
Act. However, no finality has been attached to the order passed under Section 29.

10. Breach of the order passed by the Magistrate or Sessions Judge is punishable under
Section 31 of the Act and procedure prescribed in the Cr.P.C. has been made applicable by virtue
of section 28 of the Act. Moreover, proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 of the
Act are also governed by the Cr.P.C. Nothing otherwise has been provided in the Act like attaching
finality to the order passed by the Magistrate or Sessions Judge or excluding further recourse.
Courts of Session are established under Section 9 of Cr.P.C. Presiding Officer of Sessions court is
appointed by the High Court. High court has also been empowered to appoint Additional Sessions
Judge and Assistant Sessions Judge.

11. Sections 397 and section 401 Cr.P.C. prescribe revisional powers of High Court.
Section 397 Cr.P.C. contemplates that revisional power can be exercised by the High Court not
only on the application of aggrieved person but also suo moto.
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

231
12. Section 4 (2) of Cr.P.C. provides that all offences under any other law (other than
I.P.C.) shall be investigated, inquired into, tried and otherwise dealt with according to provisions of
Cr.P.C. Section 4 of Cr.P.C. is being reproduced below:

"4. Trial of offences under the Indian Penal Code and other laws

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained

(2) All offences under any other law shall be investigated, inquired into, tried, and
otherwise dealt with according to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring into, trying or otherwise
dealing with such offences."

13. It is thus, apparent that the supervisory power or revisional jurisdiction of the High
Court has not been excluded by any provisions of the D.V. Act expressly or impliedly.

14. Thus, revisional power of the High Court is not dependent upon any other statute
providing for offences unless there is a specific exclusion of Cr.P.C.

15. A Division Bench of Allahabad High Court in case of Shafaat Ahmad vs. Smt.
Fahmida Sardar, AIR 1990 All 182, while considering the provisions of Muslim Women
(Protection of Rights on Divorce) Act, 1986, has laid down that this Act is silent so far as revisional
power is concerned but it is of no consequence as Act does not exclude the application of Cr.P.C.
Para-2 of the judgment is being reproduced below:

"A preliminary objection has been raised on behalf of the wife that the revision is
not maintainable and the learned counsel for the wife has referred to the case of A.A. Abdullah.
AIR 1988 Guj 141. In this case some other point was under consideration and casually to support
the argument that the matter should be disposed of expeditiously the single Judge of Gujarat High
Court observed that it would be worthwhile to note that no appeal or revision is provided against
the order passed by the Magistrate under Section 3 or 4 of the Act. The learned Judge was not
deciding the point whether revision is maintainable or not. This stray observation was made
casually while considering other point. Hence, it appears that this point was not properly debated
and this stray observation cannot be of much help. The simple thing is that under the Act this order
is passed and was passed by the Magistrate. Section 397 of the Code of Criminal Procedure
provides that the High court may call and examine the record of any proceedings before any
inferior criminal court and the Court of the Magistrate is an inferior criminal court. Hence, there
is no reason why the order should not be revisable by the High court. The fact that it has not been
said in the Act that the order is revisable, is of no consequence. A provision need not be made in
every Act and it is sufficient if it is provided in one Act. The Act provides that the order is to be
passed by the Magistrate and the Cr.P.C. provides that the order of the Magistrate can be revised
by the High Court. The Act does not exclude the application of the Cr.P.C. So, Cr.P.C. has to be
232 INDIAN LAW REPORTS ALLAHABAD SERIES

given effect and the order passed by the Magistrate under Section 3 of the Act becomes revisable
in view of the provisions in the Cr.P.C.. Therefore, the preliminary objection is rejected."
(Emphasis Supplied)

16. Similar question was raised before Hon'ble Kerala High Court in Crl. M.C. No. 969 of
2010 (Baiju and another vs. Latha and others) wherein Hon'ble Thomas P. Joseph (J) has held in
Para-16 of the Judgment as under:

"The next question is whether the judgment of the Court of Sessions in an appeal
under Section 29 of the Act is amenable to the revisional jurisdiction of the High Court under
Section 397(1) and 401 of the Code. I stated that the appeal is governed by the provisions of the
Code though right of appeal is provided by Section 29 of the Act. The Act does not say that
judgment of the Court of Sessions is subject to challenge before any other court. Under Section
397(1) of the Code, High Court may call for and examine the records of any proceeding before any
inferior criminal court. A Court of Sessions is a criminal court inferior to the High Court for
the purpose of exercise of revisional power under Section 397(1) and 401 of the Code. Section
397 (1) of the Code empowers the courts specified therein to call for records of the inferior
criminal court and examine them for the purpose of satisfying themselves as to whether a sentence,
finding or order of such inferior court is legal, correct or proper or whether the proceedings of
such inferior court is regular. The object of conferring revisional power is to give the superior
criminal courts supervisory jurisdiction in order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of proper precautions or apparent
harshness of treatment which has resulted on the one hand in some injury in the due maintenance
of law and order, or on the other hand in some undeserved hardship to individuals. The power of
revision is supervisory in character enabling the superior courts to call for records of the inferior
criminal courts and examine them for the purpose of satisfying themselves that the sentence,
finding, order or proceeding of such inferior court is legal, correct or proper. The Allahabad High
Court in Shafaat Ahmad vs. Smt. Fahmida Sardar (AIR 1990 All. 182) considered whether an
order under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act is revisable
under Section 397(1) of the Code."

17. Hon'ble Kerala High Court relied upon the judgment of Division Bench of Allahabad
High Court in Saman Ismail vs. Rafiq Ahmad and another (2002 Cr.L.J. 3648) in which, it was
held that even if, Act does not provide any procedure of the revision Magistrate being criminal
court, his order is amenable to revisional jurisdiction.

18. Brother Hon'ble Manoj Misra, J. in Crl. Misc. Writ Petition No. 15337 of 2012
(Prabhunath Tiwari & another vs. State of U.P. and another) has held that order passed in appeal
under Section 29 of the Act is amenable to revisional jurisdiction. Relevant para is being quoted
below:

"Having considered the preliminary objection raised by learned A.G.A. as also on
perusal of the provisions of Section 28, 29 and 31 of the Protection of Women from Domestic
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

233
Violence Act, 2005, I do not find any provision under the said Act, which may provide finality to an
order passed in exercise of powers under Section 29 of the Act.

Moreover, as the proceedings under Section 31 of the Protection of Women from
Domestic Violence Act, 2005 are governed by the provisions of the Code of Criminal Procedure,
1973 as revision would be maintainable before the High Court against the appellate order passed
by a Court of Session in exercise of power under Section 29 of the Act."

19. Madurai Bench of Madras High Court in Crl. R.C. (MD) No.287 of 2012of
(Arivazhagan vs. M. Uma and others) has held that a criminal revision against the order passed
by Magistrate was not maintainable as he has an alternative viable remedy of an appeal as per
Section 29 of the Act. This decision, therefore, does not deal with relevant point.

20. In the case of Shalu Ojha vs. Prashant Ojha (supra) there was a protection order
passed by Magistrate awarding Rs. 2.5 lacs towards monthly maintenance, an appeal was preferred
under Section 29 of the Act. In appeal an interim order was passed by Additional Sessions Judge.
Appeal was dismissed for non compliance of the interim order. Matter was taken to High Court and
ultimately to Apex Court. No question whether order passed in appeal was revisable under Section
397 Cr.P.C. was before the Court. It has been stated in the above case that in D.V. Act no further
appeal or revision has been provided to the High Court. Relying upon these observations this Court
(Hon'ble Mahendra Dayal, J.) has held that no further appeal or revision is maintainable. Relevant
paragraph of the judgment passed in Writ Petition (M/S) No. 7926 of 2015 ( Mrs. Manju Sree
Robinson & 2 others vs. State of U.P. and others) is reproduced below:

"Having heard learned counsel for the parties and having gone through the case
laws relied upon by the parties, I find that the latest pronouncement of the Hon'ble Supreme Court
is that against the order passed by the Session Judge in appeal, no further appeal or revision is
maintainable. In these circumstances, the only remedy available is to file writ petition or an
application under Section 482 Cr.P.C. Since the jurisdiction of this Court under Article 226 of the
Constitution of India is an extra ordinary jurisdiction, the aggrieved party has a right to seek
remedy under section 482 Cr.P.C. would be maintainable. At this stage, Mr. Lalit Shukla submits
that the writ petition may be treated as an application under Section 482 Cr.P.C., to which learned
counsel for the opposite party no. 2 submits that this writ petition should be dismissed and liberty
be given to the petitioners to file application under section 482 Cr.P.C. Since this exercise would
amount to further delay in the matter therefore, in the interest of justice, the petitioners are
permitted to convert this writ petition into application under Section 482 Cr.P.C."

21. Hon'ble Apex Court has only said that in D.V. Act no further appeal or revision has
been provided.

22. Code of Criminal Procedure has not been excluded in the D.V. Act. Since, High court's
supervisory power of revision which it can exercise suo moto against the order passed by
subordinate criminal courts i.e. Magistrate or Sessions Judge has not been taken away, this court is
234 INDIAN LAW REPORTS ALLAHABAD SERIES

of the view that observation made by Apex Court has been wrongly interpreted and the view taken
by Hon'ble Manoj Misra, J. in the case of Prabhu Nath Tiwari (supra) appears to be a correct law.
Division Bench of this court referred above was not placed before Hon'ble M. Dayal, J.
Consequently, this Court is of the opinion that Sessions Judge being subordinate/inferior criminal
court to the High court and there being no specific exclusion of the Cr.P.C., the revisional power of
the High Court, against the order passed under Section 29 of the D.V. Act are intact and unaffected.
In view of above, preliminary objection raised by Sri Pankaj Tiwari is overruled.

23. So far as merits are concerned, it has been alleged in the application filed under Section
12 of D.V. Act that applicant Prathama Singh was married to Chiranjeev Kumar Arya on
28.02.2009. She was serving as teacher on contract basis in Kasturba Gandhi Residential Girls
School, Nindura, Barabanki, which job she left on 19.08.2010. She came to know on 21.03.2011
that her husband has established illicit relations with other lady. She was turned out on 21.03.2011
from her husband's house and thereafter she took admission in Narvdeshwar Mahavidhyalaya,
Lucknow. Her father has retired while husband is earning nearly Rs. 3,64,000/- per annum. She is
residing in rented house and preparing for judicial service etc. She claimed Rs. 30,000/- per month
apart from Rs. 5,00000/- (five lacs) as lump sum amount. It was also stated in para-22 of the
affidavit that against the husband petition under Section 125 Cr.P.C. and petition under Section 24
of Hindu Marriage Act have been filed, while husband has filed case under Section 13 of Hindu
Marriage Act.

24. Learned Magistrate in its order dated 25.06.2014 has observed that Family court has
already ordered payment of Rs. 2000/- per month as interim maintenance. A sum of Rs. 1000/- per
month was ordered by the Magistrate under D.V. Act.

25. An appeal was filed by wife against the order passed by Magistrate, which has been
allowed on 02.09.2015 by Additional Sessions Judge, Lucknow.

26. Appellate Court was of the view that income of the husband comes to Rs. 30,000/- per
month while wife is staying in rented house as such amount of Rs. 5000/- per month would be just
and proper towards maintenance.

27. In the revision filed in this court, it is alleged that parents of wife are residing in
Barabanki while in-laws at Hardoi, as such, there is no justification for her to live in Lucknow.
Copy of the order whereby service of Prathama Singh was terminated shows that she was found to
be indiscipline, negligent and mischievous (Upadravi). It is further submitted that despite repeated
request she did not stay in Hardoi, as such, husband had to file a petition for divorce on 22.04.2011
before Family Court, Hardoi, which was transferred to Family court, Lucknow. It is stated in para14 that she is a Science teacher, runs a coaching from which she earns Rs. 25,000/- per month. She
is an advocate and has willingly deserted her husband (para-15). In para-16 it is specifically
mentioned that wife has strong financial position. She has six accounts in different banks namely
UCO bank, Lalbhag, Aliganj, United Bank of India etc. Details of the account number and amount
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

235
lying in the said accounts, have also been given, which shows that there is a one recurring deposit
account, two fixed deposit account and rest are saving account.

28. A short counter affidavit has been filed by Smt. Pathama Singh. In short counter
affidavit, it is stated that income of husband is more than Rs. 40,000/- per month. The order for
terminating her services was subject matter of writ petition No. 6076 (S/S) of 2010, said writ
petition was disposed of directing District Magistrate to decide the matter within one month after
giving opportunity to the petitioner.

29. Smt. Prathama Singh however, has not denied the allegation made in para- 15 & 16 to
the effect that she is an advocate having number of accounts in various banks.

30. Rejoinder affidavit has been filed by husband, in which it is stated that petition was
filed concealing the fact that she is an Advocate and she is an earning member. Moreover, she was
terminated because of her character and conduct, as is apparent from the termination order and not
because of domestic violence as alleged by her. It is further stated that the transfer application
seeking transfer of the matter from Family Court, Hardoi to Lucknow was filed by Pal Singh Yadav
(Enrolment No. UP-6850 of 2007) and Awadhesh Kumar Yadav. Enrolment number shown by Pal
Singh Yadav belongs to Sri Shiv Pal Singh, Advocate, as such, Pal Singh Yadav has used the
enrolment number of another counsel i.e. Sri Shiv Pal Singh. Actual enrolment number of Pal
Singh Yadav is U.P.-04987 of 2014. It is apparent from papers filed alongwith supplementary
affidavit by Chiranjeev Kumar Arya-revisionist, that Prathama Singh, Shiv Pal Singh & Pal Singh
Yadav were Advocates for petitioner, and petition was dismissed on 29.05.2015. In writ petition
No. 1065 (M/B) of 2015, it has been shown that Prathama Singh and Pal Singh Yadav were counsel
for petitioner.

31. Submission of learned counsel is that Prathama Singh an Advocate has been appearing
regularly before the Courts, thus petition under section 12 of the D.V. Act was filed by
concealment of facts. She is not unable to maintain herself. Allegation made in para-10 of the
affidavit as well as in petition filed under Section 12 of D.V. Act that she is studying and dependent
solely upon father, is incorrect. In para-15 of the petition, it is stated that she does not earn anything
and is dependent fully upon her parents. This petition has been filed by concealing the fact that she
is a regular practicing Advocate. Courts below should not have ordered any maintenance under the
D.V. Act. Had she disclosed the facts of her income, courts below would not have passed
impugned order. Apart from six accounts mentioned in revision, two more accounts have been
detailed in supplementary affidavit (one FD and one saving in SBI Barabanki).

32. In any case it has come on record that wife has become Advocate and she has number
of accounts (approx eight), as such, matter requires reconsideration. Amount has to be fixed,
keeping in view the income of the husband as well as income of the aggrieved person requiring her
to live with the standard of living to which person is accustomed.
236 INDIAN LAW REPORTS ALLAHABAD SERIES

33. It is apparent that Prathama Singh is appearing as counsel in number of cases. She is a
regularly practicing Advocate, consequently, courts below are required to consider the matter
afresh in the light of documents, which have been placed before the Court. Revision thus deserves
to be allowed.

34. It has been brought to the notice of this court that Pankaj Tiwari and Pal Singh Yadav
appeared on behalf of Prathama Singh by using different enrolment numbers. In the case at hand
Vakalatnama has been filed by Pankaj Tiwari and Pal Singh Yadav. Enrolment number shown in
Vakalatnama of Pankaj Kumar Tiwari is UP-1514 of 1996 and that of Pal Singh Yadav is UP-6850
of 2007. In the court of District Judge, Lucknow, Vakalatnama was filed by Pal Singh Yadav and
Pankaj Kumar Tiwari with enrolment numbers shown above. Further enrolment number 6850 of
2007 belongs to Shri Shiv Pal Singh as is apparent from Annexure RA-5. Enrolment number of
Prathama Singh is UP-4988 of 2014. Enrolment number of Pal Singh Yadav is UP-4987 of 2014.
Shocked by these revelations, this court called for report from the District Judge, Lucknow, who
reported that in seven courts below Pal Singh Yadav, Shiv Pal Singh, Prathama Singh, Awadesh
Kumar, Pankaj Kumar Tiwari have filed their Vakalatnama using different enrolment numbers.

35. Problem is compounded further by Shri Shiv Pal Singh, who filed an affidavit through
Sri Ravi Shanker Tiwari. Shiv Pal Singh in his affidavit states that he was shocked to know that his
name and enrolment number was used by lawyers. He states in para-5 of the affidavit that he does
not know either Prathama Singh or Pal Singh Yadav, who have used his enrolment number. In
para-6 of affidavit, it is stated that Pal Singh Yadav has not only used the enrolment number but has
also used the name of counsel in different cases. In para-7 of the affidavit, it is stated that he never
appeared before the Family court. Paras- 5, 6, 7 & 8 of the affidavit filed by Sri Shiv Pal Singh,
Advocate, are being reproduced below:

5. That it was orally informed to the Hon'ble Court that the deponent do not know
Prathama Singh, who is one of the opposite party No. 2 in the instant case nor does he knows Sri
Pal Singh Yadav, who from the record has been shown to use the registration number of the
deponent as his own.

6. That it has also come to the fore through the counsel for the petitioner that Sri Pal
Singh Yadav has not only used the enrolment number of the deponent but in a few cases he has also
used the name of the deponent as counsel for his different clients, which was without any authority
or any knowledge of the deponent and as such the such act of Pal Singh Yadav is not only
Mischievous but against the ethics of the legal practice which needs to be dealt with by stern
hands.

7.That at the very outset the deponent craves leave of this Hon'ble court to state that
he has not visited the family curt even once not to say that he has formed any such caucus or
racket. It is further reiterated that the deponent has not signed any vakalatnama with these persons
nor has he authorized any of them to use his name as he even does not know them personally.
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

237

8. That the action of Pal Singh Yadav is so grave and unethical that he deserves to
be taken out of the roll of the registered practitioner not only from the Bar Council of U.P. but if it
all he is member of any of the Associations he is liable to be expelled from the same as well. Such
act of Pal Singh Yadav or any of his associate amounts to polluting the purest stream of justice as a
lawyer is not only the officer of the court but he is indispensable in our judicial system and as such
his duty towards the society as well as the Hon'ble Courts is to remain honest and put the truth as
far as possible and his knowledge before the Hon'ble court but the action of the erring lawyer is
such that it further erodes the already lost faith from the fraternity by the respective clients.

36. He prayed that matter be referred to Bar council so that they are stripped of their
registration at the Bar.

37. Pankaj Tiwari states that Pal Singh Yadav is his junior. One Vakalatnama filed by Sri
Pankaj Tiwari alongwith Pal Singh Yadav in case of Navneet Kaur vs. Kamaljeet, before this court
shows that enrolment number of Pankaj Tiwari is 1514 of 2006 and Pal Singh Yadav's continues to
by 6850/2007. It is apparent that Pankaj Tiwari, Pal Singh Yadav, Prathama Singh have been
jointly practicing, as is apparent from the names appearing in cases filed before this Court. Pal
Singh Yadav is using the enrolment No. 6850 of 2007, which belongs to Shiv Pal Singh, who is a
member of Oudh Bar having enrolment No. UP06850/2007. It is also apparent from the affidavit
that Shiv Pal Singh's name in addition to enrolment number has also been used by these persons, as
is apparent from the name of the Advocates (alongwith Pankaj Tewari, Prathama Singh and Pal
Singh Yadav) (SA-1) appearing in 407 Cr.P.C. petition No. 38 of 2008. It further appears that Pal
Singh Yadav has filed a petition as Proprietor of Vidhya Travel Agency, as such, he appears to be
engaged in travel business. In this case Pankaj Tewari & Prathama Singh are his advocates (SA-2).
Sri Pal Singh Yadav appeared and stated that under some mistaken belief he had used the
enrolment number of Shiv Pal Singh. Such an explanation from a law graduate well-versed with the
procedure of the court is not acceptable at all and is rejected.

38. Pal Singh Yadav himself is party in Case No. 130 of 2012 pending before A.C.J.M.
Court No. 20, Lucknow. Pal Singh Yadav has also been shown as accused in Crime Nos. 312 of
2009 & 168 of 2009, under Sections 384, 506, 420 & 406 I.P.C. respectively, Police Station Naka
Hindola, Lucknow. These cases are pending before A.C.J.M. Court No. 32, Lucknow. It is also
apparent from the record that Pal Singh Yadav, Prathama Singh were enrolled by Bar Council on
the same day i.e. on 28th August, 2014 and their enrolment numbers are UP-4987 of 2014 and UP4988 of 2014 respectively.

39. It appears that Pankaj Tewari too has used two different enrolment numbers (A)
U.P.1514 of 1996 filed in this case (B) UP-1514 of 2006 filed in case No. 270 of 2013 (984 of
2013) under Section 12 of D.V. Act P.S. Alambagh filed before Additional Civil Judge (Junior
Division/JM-II) (Navneet Kaur vs. Kamaljeet Sachdeva and others).

40. Moreover enrolment number of other Advocates are being used brazenly with impunity
not only before this Court but other courts of district Lucknow.
238 INDIAN LAW REPORTS ALLAHABAD SERIES

41. Prima facie, it appears to be a case of impersonation using somebody else's name
and identity. A fraud has been done, which is apparent from the record.

42. In case of K.D. Sharma vs. Steel Authority of India Limited, (2008) 12 SCC
481 Hon'ble Apex Court has held that High Court will be failing in its duty if it does not
reject the petition on the same ground. It was a case where fraud was made upon court.
Concealment in filing case also amounts to fraud. Relevant paragraph of the case is being
reproduced hereinbelow :-

"26. It is well settled that "fraud avoids all judicial acts, ecclesiastical or
temporal" proclaimed Chief Justice Edward Coke of England about three centuries before.
Reference was made by the counsel to a leading decision of this Court in S.P.
Chengalvaraya Naidu vs. Jagannath wherein quoting the above observations, this Court
held that a judgment/decree obtained by fraud has to be treated as a nullity by every court.

27. Reference was also made to a recent decision of this Court in A.V. Papayya
Sastry vs. Govt. of A.P. Considering English and Indian cases, one of us (C.K.Thakker, J.)
(SCC p.231, para 22)

'22. It is thus settled proposition of law that a judgment, decree or order
obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the
eye of the law. Such a judgment, decree or order-by the first court or by the final court-has
to be treated as nullity by every court, superior or inferior. It can be challenged in any court,
at any time, in appeal, revision, writ or even in collateral proceedings.'

The court defined "fraud" as an act of deliberate deception with the design of
securing something by taking unfair advantage of another. In Fraud one gains at the loss
and cost of another. Even the most solemn proceedings stand vitiated if they are actuated by
fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in
rem or in personam."

43. In case of A. Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam and others, (2012) 6 SCC 430, Hon'ble Apex Court has
held as under:

"2.15. The adversarial system lacks dynamism because it has no lofty ideal to
inspire. It has not been entrusted with a positive duty to discover truth as in the inquisitorial
system. When the investigation is perfunctory or ineffective, Judges seldom take any
initiative to remedy the situation. During the trial, the Judges do not bother if relevant
evidence is not produced and plays a passive role as he has no duty to search for truth."

44. Relying upon these decisions, it is urged by learned counsel for revisionist that
entire proceedings are liable to be quashed, as fraud vitiates everything. Submission has
6 All. Chiranjeev Kumar Arya Vs State Of U.P. & Anr.

239
force, but material that wife is practising advocate having sufficient income reflected from
various Bank accounts has been placed before this court for the first time, it is but proper that
matter is remanded to learned Magistrate to take a holistic view of the matter while deciding
the application under Section 12 of D.V. Act.

45. In view of discussions made above, this revision is allowed.

46. Since fraud appears to have been played while filing petition under Section 12 of
D.V. Act by concealing material facts in the ends of justice exercising power under Sections
397/401 & 482/483 Cr.P.C., order dated 02.09.2015 passed by Additional Sessions Judge,
Court No. 17, Lucknow as well as order dated 25.06.2014 passed by learned Additional
Chief Judicial Magistrate-II, District Lucknow are set-aside. Concerned Magistrate is
directed to decide the application under Section 12 of D.V. Act considering the entire matrix
of the case, in the light of observations made in the judgment, expeditiously, if possible
within two months from today.

47. An Advocate has an independent identity and personality. It takes years to shape
the personality and build an image. This image works althrough his life. Lot of dedication,
commitment, sincerity and impeccable integrity is required to generate and sustain an image.
Using somebody else's identity and name is most sacrilegious act as such outrage and
annoyance of Sri Shiv Pal Singh is not unfounded and is fully justified.

48. So far as prayer of Sri Shiv Pal Singh, Advocate seeking action against Pal Singh
Yadav, Advocate is concerned, matter is referred to Bar Council of Uttar Pradesh and Oudh
Bar Association. Till a final decision is taken by State Bar Council, Pal Singh Yadav,
Advocate is restrained from entering the premises of High Court, Lucknow Bench, Family
Court, the court of District Judge, Lucknow and other courts subordinate to him.

49. Senior Registrar will get the Vakalatnama available in this file sealed and an
F.I.R. lodged against Pal Singh Yadav for impersonation, stealing and using the identity of
other Advocate by using his name and enrolment number.

50. Investigating Officer will also investigate the role of other Advocates/personnel
who were also party to the fraud played with the court.

51.