# Dinesh Kumar Yadav Revisionist v. State Of U.P. & Anr

- **Citation:** (2016) 8 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-02
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-yadav-revisionist-v-state-of-u-p-anr-44172
- **Pages:** 8

## Text

8 All. Dinesh Kumar Yadav Vs State Of U.P. & Anr.
123
(2016) 8 ILRA 123
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.08.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Criminal Revision No.- 582 Of 2016

Dinesh Kumar Yadav ...Revisionist
Versus
State Of U.P. & Anr. Opposite Parties

Counsel for Revisionist:
Lalji Yadav

Counsel for Opposite Parties:
Govt. Advocate

This is a revision filed under Section 397/401 of the Code of Criminal Procedure, 1973 challenging the order
passed by the Court of Sessions in Appeal filed under Section 29 of the 'Protection of Women from Domestic
Violence Act, 2005 and an order passed under Section 12(5)(b) of the said Act, 2005, by the Magistrate,
which has been upheld by the appellate court.

Hon'ble court has referred several questions to larger bench for its consideration and they are as follows:

i) whether a revision under Section 397/401 of the Code of Criminal Procedure, 1973 is maintainable before
the High Court challenging an order passed by the Court of Sessions under Section 29 of the Act 2005?

ii) whether the decisions in the case of Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) lay
down the law correctly on the question of maintainability of a Revision under Section 397/401 of the Code of
Criminal Procedure before the High Court against an order passed by the Court of Sessions under Section 29
of the Act 2005 in view of the earlier decisions of the Supreme Court in the case of Thakur Das (supra);
National Sewing Thread co. (supra); Maharashtra State Financial Corporation (supra); and ITI Ltd., (supra) ?

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. Issue notice to opposite party no.2 .

3. This is a revision filed under Section 397/401 of the Code of Criminal Procedure, 1973
challenging the order passed by the Court of Sessions in Appeal filed under Section 29 of the
'Protection of Women from Domestic Violence Act, 2005' (hereinafter referred to as 'the Act,
2005') and an order passed under Section 12(5)(b) of the said Act, 2005, by the Magistrate, which
has been upheld by the appellate court.
124 INDIAN LAW REPORTS ALLAHABAD SERIES

4. First and foremost, the question of maintainability of this revision is required to be
considered specially as learned Additional Government Advocate has raised such an objection
based the decision of a Co-ordinate Bench of this court dated 27.01.2016 in Criminal Revision No.
4016 of 2015 (Nishant Krishan Yadav vs. State of U.P. And another) which has been rendered
after considering the decision of the Supreme Court in the case of Shalu Ojha vs. Prashant Ojha
reported in 2015(2) SCC 99 and it has been held that revision under Section 397/401 of the Code of
Criminal Procedure, 1973 is not maintainable against an order passed by the District Judge under
Section 29 of the Act, 2005 and while doing so it has expressed its dis-agreement with the view
expressed by Kerala High Court in the case of Baiju Chandran Nair and another vs. Latha Balan
Nair and another reported in 2011 Crl. L.J. 4536 and the view expressed by Madras High Court in
the case of K. Rajendran vs.Ambika Valmy in Criminal Revision Case (M.D) No. 482 of 2012.

5. Another Coordinate Bench of this Court hearing Writ Petition No. 7926 (MS) of 2015
(Mrs.) Manju Sree Robinson and 2 others vs. State of U.P. and others) has also taken the same
view based on the decision of Shalu Ojha (supra) and has further held that a Writ Petition under
Article 226 of the Constitution would also not be maintainable and appropriate remedy was only a
petition under Section 482 of the Code of Criminal Procedure.

6. This Bench had also earlier followed the decision in (Mrs) Manju Shree Robinson
(supra), however, on being apprised of the contrary view in the case of Chiranjeev Kumar (supra)
and in Crl. Misc. Writ Petition No. 15337 of 2012 (Prabhu Nath Tewari & another vs. State of
U.P. & another) as also the decisions of Kerala and Madras High Courts this Bench had a fresh
look at the matter.

7. The Act, 2005 is a special enactment which has been promulgated, as is evident from its
long title, to provide more effective protection of the rights of women guaranteed under the
Constitution who are victims of violence of any kind occurring within the family and for matters
connected therewith or incidental thereto. It provides remedy in such matters under Sections
12,18,19,20,21,22 and 23 as also a provisions for grant of interim order or ex-parte order under
Section 23. The proceedings under the aforesaid provisions are to take place before the Judicial
Magistrate Ist Class or Metropolitan Magistrate, as the case may be, within whose local limits the
contingencies mentioned in Section 27 arise. As per section 28(1), save as otherwise provided in
the Act, 2005, all proceedings under sections 12,18,19,20,21,22 and 23 and offences under Section
31 shall be governed by the provisions of the Code of Criminal Procedure, 1973. Sub section 2 of
Section 28 provides that nothing in sub section (1) shall prevent the court from laying down its own
procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23,
meaning thereby a procedure different from one provided in the Code of Criminal Procedure, 1973
could be laid down for the said purpose. There is nothing on record to show that procedure other
than the one prescribed in Code of Criminal Procedure has been prescribed for proceedings under
Section 12 and 23(2) of the Act, 2005.
8 All. Dinesh Kumar Yadav Vs State Of U.P. & Anr.
125
8. Under Section 29 there shall lie an appeal to the Court of Session within 30 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. Section 29 is not mentioned in Section 28.

9. In Nishant Krishna Yadava (supra) the court was persuaded by the decision of the
Supreme Court in Shalu Ojha (supra) wherein the Supreme Court held that after the appeal under
Section 29, the Act, 2005 does not prescribe any further remedy. In paragraph 13 the Supreme
Court observed that before we proceed to take any decision in the matter, we deem it appropriate to
make a brief survey of the DV Act (Act, 2005) insofar as it is relevant for the present purpose.
After considering the provisions of the scheme of the Act, 2005 in paragraphs 14,15,16,17,18 and
19 it observed in paragraph 19 that " 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. It is in this background of the above mentioned scheme of the DV Act
this case is required to be considered". It went on to hold that when interim maintenance was
granted by the Magistrate then the High Court should not have lightly interfered with the same.

10. A perusal of the said judgment shows that the specific issue as to whether a revision
under Section 397/401 of the Code of Criminal Procedure, 1973 can be maintained against an order
passed in appeal under Section 29 of the Act, 2005 was neither involved, raised nor argued as, at no
stage was any revision filed against any order passed under Section 29 of the Act, 2005, but
nevertheless on a consideration of the scheme of the Act, 2005, an observation has been made in
paragraph 19 which has already been quoted hereinabove. The question is whether this constitutes a
binding precedent on the issue involved in this case especially in view of the earlier decisions
which find mentioned hereinbelow, the ratio of which is to the contrary.

11. Reference may be made in this regard to the decision of the Supreme Court in the case
of Thakur Das vs. State of Madhya Pradesh and another reported in (1978) 1 SCC 27 wherein the
question was regarding maintainability of a Revision under Section 439 and 435 of the Code of
Criminal Procedure 1898 (old Code) against an order passed by Sessions Judge under Section 6C
of the Food and Essential Commodities Act, 1955. Under Section 6C of the said Act, the State
Government was empowered to appoint a judicial authority to hear the appeal as per Notification of
the State Government. The sessions Judge was appointed as the appellate authority. The Supreme
Court considered the issue and held that the Sessions Judge while acting as an appellate authority
under Section 6C of the Act 1955 "exercising judicial power of the State is an authority having its
own hierarchy of superior and inferior Court, the law of procedure according to which it would
dispose of matters coming before it depending upon the nature of jurisdiction exercised by it acting
in judicial manner". The Supreme Court further went on to hold in paragraph 8 that Sessions Judge
exercising power of appeal under Section 6C of the Act 1955 would only mean the Judge presiding
over the Session Court and discharging the functions of that Court constituted under Section 7 & 9
of the Code of Criminal Procedure 1898, therefore, the conclusion is inescapable that he is not a
persona designata which expression is understood to mean a person pointed out or described as an
individual as opposed to a person ascertained as a member of a class or as filling a particular
character. Based on aforesaid reasoning the Supreme Court further held in paragraph 11 that the
126 INDIAN LAW REPORTS ALLAHABAD SERIES

Sessions Judge though appointed as an appellate authority by a Notification of the state Government
was the Sessions Court over which the Sessions Judge presides and that the Sessions Court is
constituted under the Code of Criminal Procure and indisputably it is an inferior criminal court in
relation to High Court, therefore, against the order made in exercise of powers conferred by Section 6C
of the Act, 1955 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. The aforesaid
provisions of the old Act are substantially similar to Section 397/401 of Code of Criminal Procedure,
1973

12. This decision covers the issue involved hereinabove on all its fours and has also been relied
by a Coordinate Bench in the case of Chiranjeev Kumar vs. State of U.P. in Criminal Revision No.
879 of 2003 but has escaped the notice of two other Coordinate Benches in Nishant Krishna Yadava
(supra) and Mrs. Manju Shree Robinson(supra) which have taken a contrary view.

13. Section 28 makes the procedure prescribed in Code of Criminal Procedure applicable to
proceedings under Sections 12,18,19,20,21,22,23 and 31 of the Act, 2005, but it does not refer to
Section 29. It is well settled that if a special statute provides a remedy before an established court
without saying anything further to the contrary then the procedure followed before the said court
automatically becomes applicable to the proceedings even under a special Act. In the present case the
reference to a Court of Sessions is to the Court constituted under Sections 6,7 and 8 of the Code of
Criminal Procedure, 1973. The omission to refer Section 29 in Section 28 appears to be for the reason
that section 29 follows Section 28 and based on this, exclusion of the Code of Criminal Procedure to
Section 29 cannot be inferred. Reference may be made in this regard to the decision of the Supreme
Court in the case of National Sewing Thread Co. Ltd, Chidambaram vs. James Chadwaick and Bros,
reported in A.I.R. 1953 SC 357 wherein it was held that "rule is well settled that when a statute
directs that an appeal shall lie to a Court already established, then that appeal must be regulated
by the practice and procedure of that Court. This rule was very succinctly stated by Viscount
Haldane L.C. in National Telephone Co. Ltd. vs. Postmaster-General, (1913) AC 546 (A), in the
following terms:-

"When a question is stated to be referred to an established court without more, it in
my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also
that any general right of appeal from its decision likewise attaches".

The same view was expressed by Their Lordships of the Privy Council in - Adalkappa
Chettiar vs. Chandresekhara Thevar, AIR 1948 PC 12 (B), wherein it was said:

"Where a legal right is in dispute and the ordinary courts of the country are seized of
such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an
appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a
special statute which does not, in terms confer a right of appeal."
8 All. Dinesh Kumar Yadav Vs State Of U.P. & Anr.
127
14. The aforesaid consideration was made by the Supreme Court in the context of a Letter's
Patent Appeal being maintainable from an order passed by the learned Single Judge of High Court
under the Trade Marks Act, 1913.. The Supreme Court in said the case also referred to the case of
Secretary of State of India v. Chellikani Rama Rao reported in A.I.R. 1916 PC 21 wherein it was held
that Section 76 of Trade Marks Act confers a right of appeal to the High Court "and says nothing more
about it", that being so the High Court has to exercise its other appellate jurisdiction by a Single Judge.
Therefore, his judgment becomes subject to appeal under Clause 15 of Letters Patent Act, "there being
nothing to the contrary in the Trade Marks Act".

15. These judgments were also referred to and relied upon in the case of Maharashtra State
Financial Corporation v. Jayee Drugs & Pharm reported in (1991) 2 SCC 637, wherein a similar
proposition has been laid down while considering the applicability of the Code of Criminal Procedure to
the proceedings before the District Judge under the State Financial Corporation Act, 1951.

16. Likewise in the case of ITI Ltd. v. Siemens Public Communications Network Ltd. reported
in (2002) 5 SCC 510 the Supreme Court while considering the question as to whether a revision under
Section 115 of the Code of Civil Procedure, 1908 lies to the High Court as against an order made by a
Civil Court in an appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996
specially when a Second Appeal is statutorily barred under the Act and the Code of Civil Procedure,
1908 is not specifically made applicable, the Court opined in paragraph 10 that "it is true in the
present Act application of Code is not specifically provided for but what is to be noted is; is there
an express prohibition against the application of the Code to a proceeding arising out of the Act
before a Civil Court ? We find no such specific exclusion of the Code in the present Act. When
there is no express exclusion, we cannot by inference hold that the Code is not applicable". Justice
D.M. Dharmadhikari concurring with the judgment of Justice N. Santosh Hegde in that very case in
paragraph 19 held "when a special Act on matters governed by that Act confers a jurisdiction on
an established court, as distinguished from a persona designata, without any words of
limitation,then the ordinary incident of procedure of that court including right of appeal or
revision against its decision is attracted". Based on said reasoning and following the judgments
already referred to hereinabove the Court held that against an order passed under Section 37 of the
Arbitration and Conciliation Act, 1996 a revision under Section 115 of the Code of civil Procedure was
maintainable.

17. The analogy of these judgments applies to the present case also for the reasons already
mentioned hereinabove specially as a court of Sessions mentioned in Section 29 is not a persona
designata but a Court established under the Code of Criminal Procedure, without saying anything
more, and as there is nothing in the Act, 2005 excluding the applicability of Code of Criminal
Procedure, therefore, the procedure followed before a court of Sessions which includes a Revision
under Section 397/401 of the Code of Criminal Procedure against its orders, will be
maintainable.(emphasis supplied)

18. As per Section 5 of the Code of Criminal Procedure, 1973 nothing contained in this Code
shall, in absence of a specific provision to the contrary, affect any special or local law for the time being
128 INDIAN LAW REPORTS ALLAHABAD SERIES

in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by
any other law for the time being in force. The Act of 2005 does not prescribe any special form of
procedure either for the proceedings under Sections 12,18,19,20,21,22 and 23 or for appeal under
Section 29; in fact Section 28(1) therein categorically mentions that the proceedings under the aforesaid
provisions including section 31 shall be governed by the Code of Criminal Procedure, 1973. Section 29
refers to an appeal before the court of Sessions without saying anything more, therefore, the normal
procedure applicable to it under Code of criminal Procedure will apply. Reference may be made in this
regard to Section 397 of the Code of Criminal Procedure, 1973 which is as under:-

"397. 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 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 and 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.

(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."

19. Under Section 397 of the Criminal Procedure Code the High Court may call for
examination of the record before any inferior court situate within its or his local jurisdiction for the
purpose to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order,
recorded or passed. The Court of Sessions referred to in Section 29 of the Act, 2005 is a Criminal Court
inferior to the High Court and in the present case it is situated within its limits or local jurisdiction of
this High Court. In Thakur Das's Case (supra) the Supreme Court has already held it to be so in the
context of appointment of the District Judge as appellate authority by the State Government under the
Essential Commodities Act, 1955. The ratio of this decision as also the decision rendered in the case of
National Thread sewing Co. Ltd (supra); Challikavi Rama Rao (supra); Maharashtra State
Financial Croporation (supra); ITI Ltd (supra), as noted earlier, apply to the present case also, which
have escaped the attention of the coordinate Bench in Nishant Krishna Yadav (supra) and in the case of
(Mrs) Manju Shree Robinson (supra).

20. A coordinate bench of this Court in Criminal Misc. Writ Petition No. - 15337 of 2012
(Prabhunath Tiwari and another vs. State of U.P. And another) opined, after perusal of the provisions
8 All. Dinesh Kumar Yadav Vs State Of U.P. & Anr.
129
contained in Sections 28,29,30 and 31, that it did not find any provision under the Act which may attach
finality to an order passed in exercise of power under Section 29 of the Act. Moreover as the
proceedings under Section 31 of the Act, 2005 are governed by the provisions of the Code of Criminal
Procedure, 1973, a revision would be maintainable before the High Court against an appellate order
passed by a Court of Sessions in exercise of power under Section 29 of the Act, 2005.

21. Another coordinate bench in the case of Chiranjeev Kumar (supra) after considering a
conspectus of judgments of the Supreme Court, a Division Bench of this Court in the case of Shafaat
Ahmad vs. Smt. Fahmida Sardar reported in AIR 1990 Alld.182 and the judgment of Kerala High
Court in the case of Baiju Chandran Nair(supra), the judgment of Madras High Court in the case of
Chiranjeev Kumar (supra) has also come to the conclusion that the Court of Sessions being a Court
inferior to the High Court, a Revision under Section 397/401 of the Code of Criminal Procedure, 1973
would be maintainable against an order passed under Section 29 of the Act, 2005. It has also considered
Shalu Ojha's case and has opined that this issue was not directly involved in the said case before the
Supreme Court. Chiranjeev Kumar (supra) also takes into consideration the judgment of the Supreme
Court in Thakur Das (supra).

22. In view of the above the legal proposition laid down in Nishant Krishna Yadav (supra) and
(Mrs.) Manju Shree Robinson (supra) requires reconsideration and the conflicting opinion expressed
by coordinate Benches also require a clarification so as to bring certitude on the issue involved.

23. As a Coordinate Bench in Chiranjeev case (supra) has relied upon the Division Bench in
the case of Shafaat Ahmad (supra) which related to the provisions of the Muslim Women Protection of
Rights on Divorce) Act, 1986 it would be appropriate that the matter be placed before a Larger Bench.

24. In view of above the following questions are being referred for consideration by a larger
Bench:-.

i) whether a revision under Section 397/401 of the Code of Criminal Procedure, 1973 is
maintainable before the High Court challenging an order passed by the Court of Sessions under Section
29 of the Act 2005?

ii) whether the decisions in the case of Nishant Krishna Yadav (supra) and Manju
Shree Robinson (supra) lay down the law correctly on the question of maintainability of a Revision
under Section 397/401 of the Code of Criminal Procedure before the High Court against an order passed
by the Court of Sessions under Section 29 of the Act 2005 in view of the earlier decisions of the
Supreme Court in the case of Thakur Das (supra); National Sewing Thread co. (supra); Maharashtra
State Financial Corporation (supra); and ITI Ltd., (supra) ?

25. Let the office place the record of this Criminal Revision before the Hon'ble Chief Justice in
terms of Chapter V, Rule 6 of the Allahabad High Court Rules, 1952 for constituting a bench of such
strength as he deems fit and necessary for considering the above reference.
-----------
130 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Habeas Corpus Writ Petition No.- 49736 Of 2015

Naveen Kumar (Detenue) ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Rajni Ojha, Ravindra Nath Chaubey

Counsel for Respondents:
Govt. Advocate, Sudhir Mehrotra

This writ petition has been filed with the prayer to direct the respondents to produce the corpus of detenue
namely, Naveen Kumar i.e. petitioner before this Court.

It has been contended by the learned counsel for the petitioner that the petitioner was arrested on 7.8.2015
and thereafter remand was granted on 8.8.2015 by the Magistrate concerned. He submits that the said
remand order was a cyclostyle and subsequently, on 21.8.2015 further remand was granted through video
conferencing.

Section 167 (2) proviso (b) of The Code of Criminal Procedure, 1973 is quoted below:-

"(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced
before him;"

A Magistrate cannot order the detention of any person in custody or extend such detention without the
production of the accused before him in violation of the provisions of proviso (b) to S. 167(2) Cr.P.C.

Court observed that the judicial custody remand order dated 21.8.2015 of the accused person Naveen Kumar
through video conferencing, it is evident from the counter affidavit filed by Sri Ram Karan Yadav, presently
posted as Railway Magistrate, Ghaziabad and who has passed the judicial custody remand order dated
21.8.2015 of the accused person Naveen Kumar. It is proved that this order was passed by him when the
accused person Naveen Kumar was present before him through video conferencing and on the basis of
request made by the Investigating Officer of the aforesaid matter, judicial custody remand of the accused
person Naveen Kumar was granted w.e.f. 21.8.2015 to 3.9.2015.

Court does not find any good ground for interference in the matter.

The writ petition is accordingly dismissed.