# Shyam Bahadur Singh v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 596
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Criminal Misc. Writ Petition No. 22529 of 2008
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-bahadur-singh-v-state-of-u-p-anr-50386
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 125 - Order for
maintenance of wives , children and
parents
-
Non-mentioning
or
wrong
mentioning of provisions of law should not
be treated as obstacle in proceeding with
a case - order of civil court could be
challenged under Article 227 of the
Constitution of India and not under
original writ jurisdiction under Article 226
of the Constitution of India - any matter
which has been decided in a summary
manner shall not have an effect of resjudicata. (Para -6,7)

Proceeding initiated by wife under Section 125
Cr.P.C. - Dismissed - revision - dismissed -
Second application for grant of maintenance
filed by respondent no. 2(wife) under Section
125 Cr.P.C. - ground - change in circumstances
i.e. remarriage by the husband - objected by
petitioner - disputed questions of fact. (Para -
8,10)

HELD:-Section 125 Cr.P.C. applies to individuals
who
have
been
neglected
or
refused
maintenance, or who lose resources due to
changed circumstances. Liability to maintain
under section 125 Cr.P.C. is continuing one.
Change in circumstances allows a person to
apply for maintenance. Foreclosure would
frustrate the purpose of section 125 Cr.P.C.. No
interference required in the order of trial court
or of the revisional court in exercise of writ
jurisdiction. (Para -11)

Petition dismissed. (E-7)

List of Cases cited:

Radhey Shyam & anr. Vs Chhabi Nath & ors.,
(2015) 5 SCC 423

## Text

596 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant was required to show whether
final report submitted by the police against
the accused has been accepted by the Court
or not. Vide annexure SA-2 there is primafacie evidence that the final report
submitted by the police has been accepted
by the Court. Five cases shown to be
registered against the present applicant. In
four of them he has been acquitted and in
one, final report submitted by the police,
has been accepted.

Perusal
of
the
order
dated
14.06.2000 indicates that cognizance was
taken in the year 2000, charge was framed
on 27.08.2008 vide annexure 5 out of 19
witnesses 18 have been cross examined.
The question is whether at this stage
accused/applicant is entitled to move
application under Section 482 Cr.P.C.
During arguments, learned counsel for the
applicant has referred annexure 7 to
annexure
12
to
show
that
similar
applications under Section 482 Cr.P.C.
moved on behalf of co-accused have been
allowed by this Court. From annexure 7 to
10, the order have been passed on
concession by learned AGA. However,
orders annexure 11 and 12 have been
passed even though on behalf of the State
quashing of charge sheets was vehemently
opposed. In both these cases, learned
Single Judge has opined that when in all
the 4 cases shown in the Gang Chart, the
applicant has been acquitted, prosecution of
the applicant under Gangster Act should
not be continued. Thereafter he has
quashed proceedings of Sessions Trial
No.199 of 2000, under Section 2/3 UP
Gangster Act going on against co-accused
Ram Kumar Singh and Akhtar Husain alias
Sarju."

24. With regards to the argument that
the company has not been made as an
accused and the proceedings be quashed on
the ground itself it is the prosecution case
that the godown belonged to the applicant
from
which
the
illegal
liquor
was
recovered. It is the case of the applicant
that the godown is of the company, the
same is to be taken up in the trial at the
appropriate stage to show as to who is the
owner of the godown and whose material is
being stocked therein. The proceedings on
the said ground itself cannot be quashed.

25. The proposition of law with
regards to maintainability of a petition
under section 482 Cr.P.C. even at the stage
of recording of evidence in trial is not in
dispute at all but the decision of the same
would be in the facts and circumstances of
each and every case independently.

26. In view of the discussion as
above, the law on the issue, the prima facie
material available against the applicant and
also the stage of the case, this Court does
not find it to be a fit case for interference,
the present application under Section 482
Cr.P.C. is thus dismissed.
----------
(2023) 7 ILRA 596
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 22529 of 2008

Shyam Bahadur Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Satish Kumar Mishra

Counsel for the Respondents:
7 All. Shyam Bahadur Singh Vs. State of U.P. & Anr.
597
G.A., Sri Shyam Sunder Mishra, Sri O.P.
Mishra

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 125 - Order for
maintenance of wives , children and
parents
-
Non-mentioning
or
wrong
mentioning of provisions of law should not
be treated as obstacle in proceeding with
a case - order of civil court could be
challenged under Article 227 of the
Constitution of India and not under
original writ jurisdiction under Article 226
of the Constitution of India - any matter
which has been decided in a summary
manner shall not have an effect of resjudicata. (Para -6,7)

Proceeding initiated by wife under Section 125
Cr.P.C. - Dismissed - revision - dismissed -
Second application for grant of maintenance
filed by respondent no. 2(wife) under Section
125 Cr.P.C. - ground - change in circumstances
i.e. remarriage by the husband - objected by
petitioner - disputed questions of fact. (Para -
8,10)

HELD:-Section 125 Cr.P.C. applies to individuals
who
have
been
neglected
or
refused
maintenance, or who lose resources due to
changed circumstances. Liability to maintain
under section 125 Cr.P.C. is continuing one.
Change in circumstances allows a person to
apply for maintenance. Foreclosure would
frustrate the purpose of section 125 Cr.P.C.. No
interference required in the order of trial court
or of the revisional court in exercise of writ
jurisdiction. (Para -11)

Petition dismissed. (E-7)

List of Cases cited:

Radhey Shyam & anr. Vs Chhabi Nath & ors.,
(2015) 5 SCC 423

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Satish Kumar Mishra,
learned counsel for the petitioner, Sri
Shyam Sunder Mishra, learned counsel for
respondent no. 2 and Sri O.P. Mishra,
learned AGA for the State.

2. This writ petition has been filed by
the petitioner to issue a writ, order or
direction in the nature of certiorari
quashing the order dated 31.01.2006 and
22.01.2004 passed by Additional District
Judge/Special Judge (SC/ST Act), Banda
and Additional Chief Judicial Magistrate,
North-East
Railway,
District
Banda
respectively.

3. The facts relevant for the purpose
of this writ petition are as below:-

The respondent no. 2 filed an
application under Section 125 Cr.P.C.
claiming maintenance from her husband,
which was dismissed on 31.01.1995 on
certain grounds; the criminal revision filed
by the respondent/wife was also dismissed;
the respondent no. 2 again moved a second
application under Section 125 Cr.P.C. on a
premise that there have been change in
circumstances, therefore, she is entitled to
claim maintenance from her husband and
that second application case no. 1490/2003
came to be allowed directing her husband
to pay Rs. 1,500/- per month; the opposite
party aggrieved by the above order dated
22.01.2004, preferred a criminal revision
no. 30/2004 which was dismissed on
31.01.2006, now the petitioner husband is
before this court challenging the order
passed by the trial court as well as the
order passed by the revisional court.

4. The main crux of the argument of
the petitioner is that the respondent's wife
never challenged the order of the revisional
court by which the earlier order passed by
the trial court rejecting the first application
under Section 125 Cr.P.C. was affirmed,
598 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, the order passed against the wife
became final and therefore, the matter
cannot be agitated again by filing another
application under Section 125 Cr.P.C.; it is
argued
that
the
entire
proceeding
subsequently initiated by respondent no. 2
is barred by principle of constructive resjudicata and hit by the provisions of
Constitution of India, therefore, it is liable
to be quashed; it is further argued that the
subsequent orders granting maintenance is
passed ignoring the factual and legal
positions; the learned trial court as well as
the revisional court passed an illegal order,
therefore the orders cannot be sustained.

5. The contentions of the petitioner is
opposed by respondent no. 2 on the ground
that in a judicial order this Court is not
allowed to interfere while exercising writ
jurisdiction under Article 226 of the
Constitution of India. Hence, the petition
should be dismissed at the very threshold.
To stress above point. Judgement of
Hon?ble Supreme Court in the case of
Radhey Shyam and another vs. Chhabi
Nath and others, (2015) 5 SCC 423 has
been referred to.

The apex court in the aforesaid
judgment held that writ of certiorari lies to
bring decisions of an ?Inferior court?,
tribunal, public authority or any other body
of persons for review so that the court may
determine whether they should be quashed
or not. However, expression ?interference?
the court is not referable to the judicial
courts Writ of certiorari lies against
patently erroneous or without jurisdiction
orders of tribunals or authorities or courts
other than judicial courts. The Apex Court
in para 25 further observed as below:-

"25. All courts in the jurisdiction
of a High Court are subordinate to it and
subject to its control and supervision
under Article 227. Writ jurisdiction is
constitutionally conferred on all High
Courts.
Broad
principles
of
writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
Tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India
for High Courts to issue writs to
subordinate courts. Control of working of
subordinate courts in dealing with their
judicial orders is exercised by way of
appellate or revisional powers or power of
superintendence under Article 227.Orders
of civil court stand on different footing
from
the
orders
of
authorities
or
Tribunals
or
courts
other
than
judicial/civil courts. While appellate or
revisional jurisdiction is regulated by
statutes, power of superintendence under
Article
227
is
constitutional.
The
expression
"inferior
court"
is
not
referable to judicial courts"

6. Thus it has been clearly laid down
that order of civil court could be challenged
under Article 227 of the Constitution of
India
and
not
under
original
writ
jurisdiction under Article 226 of the
Constitution of India.

7. Certain facts catch attention of this
court. The second application for grant of
maintenance was filed by the respondent
no. 2 in the year 2003 and the same was
decided by an order dated 22.01.2004. The
revision filed against that order was
dismissed in January 2006. This petition
under Article 226 of the Constitution of
India came to be filed by the husband with
a prayer to quash those orders in 2008 and
since then matter is pending. Almost 14
years have gone since then and all this
7 All. Shyam Bahadur Singh Vs. State of U.P. & Anr.
599
while, this legal issue was neither raised nor
realised that the writ petition seeks to invoke
powers under Article 226 instead of Article
227 of the Constitution of India. This is
settled law that non-mentioning or wrong
mentioning of provisions of law should not
be treated as obstacle in proceeding with a
case. In my view, an ordinary litigant cannot
be expected of having too minute knowledge
of provisions of law and that the court shall
be failing in its duty if the case is thrown in
the waste paper basket on a technical point or
on the basis of mentioning of a wrong
provision of law. In such matter, a Judge
ought to play its expected role. In this view of
the matter, I find it fit to treat this petition as
one moved under Article 227 of the
Constitution of India.

8. This is not disputed that the earlier
proceeding initiated by the wife under
Section 125 Cr.P.C. came to be dismissed
and the revision filed by her also came to be
dismissed.
This
is
not
disputed
that
subsequent case under Section 125 Cr.P.C.
was filed by the wife on a premise that there
has been a change in circumstances.

9. I find it pertinent to reproduce
relevant portion of Section 125 Cr.P.C. which
is as below:-

"(1)
If
any
person
having
sufficient means neglects or refuses to
maintain-

(a) his wife, unable to maintain
herself, or

(b) his legitimate or illegitimate
minor child, whether married or not, unable
to maintain itself, or

(c) his legitimate or illegitimate
child (not being a married daughter) who
has attained majority, where such child is,
by reason of any physical or mental
abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable
to
maintain
himself
or
herself,
a
Magistrate of the first class may, upon
proof of such neglect or refusal, order
such person to make a monthly allowance
for the maintenance of his wife or such
child, father or mother, at such monthly
rate not exceeding five hundred rupees in
the whole, as such Magistrate thinks fit,
and to pay the same to such person as the
Magistrate may from time to time direct:
Provided that the Magistrate may order
the father of a minor female child referred
to in clause (b) to make such allowance,
until she attains her majority, if the
Magistrate is satisfied that the husband of
such minor female child, if married, is not
possessed of sufficient means."

10. It may be noted that the solemn
aim of the proceedings under Section 125
Cr.P.C. is to prevent vagrancy and
destitution. Section 125 Cr.P.C. is a piece
of social legislation introduced in Cr.P.C.
to grant a quick relief to the members of the
society. At the same time, it may be noted
that procedure which shall be adopted in
such cases is a summary one. This is settled
legal position that any matter which has
been decided in a summary manner shall
not have an effect of res-judicata, hence in
my view this argument is misconceived.
More so because this application has been
moved on the ground that there has been
change in circumstances i.e. remarriage by
the husband. Though the petitioner has
objected to the fact of remarriage, however,
this court in exercise of writ jurisdiction is
not permitted to go into the disputed
questions of fact.
600 INDIAN LAW REPORTS ALLAHABAD SERIES

11. There may be instances where the
person who falls within the purview of
section 125 Cr.P.C. as being one who has
been neglected or refused maintenance
during certain period of time. There may be
some instances where a person, is for the
time being able to maintain himself or
herself looses her/his resources because of
changed circumstances. In such cases a
fresh right to claim maintenance may
accrue. Legally the liability to maintain
under section 125 Cr.P.C. is continuing
one. In my view, when there is a change in
circumstances entitling a person to be a
claimant as per provisions of section- 125
Cr.P.C., he or she can very well apply for
maintenance.
If
such
an
option
is
foreclosed, it shall frustrate the very
purpose of section- 125 Cr.P.C. I do not
find any good ground to interfere in the
order of the trial court or of the revisional
court in exercise of writ jurisdiction of this
court.

12. Hence, this writ petition is
dismissed.
----------
(2023) 7 ILRA 600
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6481 of 2016
And
Criminal Appeal No. 6230 of 2016

Ankit ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Kumar Mishra, Sri Rajiv Lochan
Shukla, Sri Gautam, Sri Jitendra Rana

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 299, 302 r/w 34 - Punishment for
murder - Life imprisonment - Indian
Evidence Act, 1872 - Section 106 - Code of
Criminal Procedure, 1973 - Sections 154,
161 - Appeal against conviction - Chain of
circumstantial evidence missing - Benefit
of doubt - Allegations against appellants
that they were causing mental torture to
deceased and she had quarrel with her
husband on date of incident, committed
suicide - After investigation charge-sheet
submitted against appellants - Charges
framed - Pleaded not guilty - Appellants
submitted that learned Judge has come to
wrong conclusion that death was by
strangulation
and
not
suicide,
even
medical evidence does not support the
same. (Para 4, 8, 9, 15)

Held, the appellants cannot be held guilty
for offence u/s 302 IPC, as father-in-law
was not at place of offence and husband
does private job and had gone for job,
mentioned in St.ment recorded u/s 313
Cr.P.C., disbelieved by trial Judge - All
witnesses
turned
hostile
-
Incident
occurred in home but presence of accused
not proved - Death was not premeditated,
accused had no intention to cause death
of deceased, injuries were sufficient in
ordinary course of nature to have caused
death, it was suicidal death, accused had
not committed murder of deceased. (Para
24, 25)

Appeals allowed. (E-13)

List of Cases cited:

1. Subrahmanyam Vs St. of Tamil Nadu & ors.,
2010 (1) UPCRR page 21

2. G. Parshwanath Vs St. of Karn.; AIR 2010 SC
2914