# Smt. Hasina Khatoon v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Case number:** Application U/S 482. No. 7721 of 2023
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hasina-khatoon-v-state-of-u-p-anr-50008
- **Pages:** 9

## Headnote

Criminal Law- The Protection of Women
from Domestic Violence Act-2005-Sections
12, 23, 31 & 32 - Code of Criminal
Procedure,
1973-Section
300-Applicant
along with her handicapped son was
thrown out of her domestic unit
-
Proceedings under Section- 12 of the D.V
Act initiated- Interim maintenance of
Rs.8,000/- per month awarded-Opp. Party
no.2 declined to adhere to the directions
of executing court for the recovery of
Rs.2.64 lacs and consequently was sent
behind the bars for 30 days-Subsequent
application u/s 31 moved for issuance of
"fresh recovery warrants" rejected by the
trail court taking recourse of Sec 300
CrPC-Reasoning adopted by the court
below is palpably myopic and puerile-
Impugned order is per se absurd and total
non-application of correct law- Exercise of
power u/s 31 of the Domestic Violence Act
is a mode of enforcement of the alleged
protection orders u/s 18 of the Act and it
is
distinguished
from
the
mode
of
satisfaction and the liability which can
only be made by means of the an actual
payment
-Result-Impugned
order
quashed-(Para 3 to 17)

Application U/s 482 CrPC disposed off. (E-15)

List of Cases cited:

## Text

4 All. Smt. Hasina Khatoon Vs. State of U.P. & Anr.
709
POCSO Act, Police Station Jaisinghpur,
District Sultanpur on the basis of alleged
compromise
between
the
accused/
applicant and the victim as the case does
not fall in any of the categories
recognized by the Hon'ble Supreme Court
in Bhajan Lal's case (supra), Rathish
Babu Unnikrishnan's case (supra),
Satish Kumar Jatav's case (supra),
Ramveer Upadhyay's case (supra),
Narinder Singh's case (supra) and
Daxaben's case (supra), which may
justify their quashing.

19. However, it is needless to mention
that, in case, the present accused/ applicant
seeks anticipatory bail/ bail before the
learned court below concerned, the same
shall be disposed of by the learned court
below concerned with utmost expedition
having regard to the facts of this case and
in accordance with settled law.

20. With the aforesaid observations/
directions, the instant application under
Section 482 Cr.P.C. stands disposed of.
----------
(2023) 4 ILRA 709
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.04.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482. No. 7721 of 2023

Smt. Hasina Khatoon ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Akshaya Kumar

Counsel for the Opposite Parties:
G.A.
Criminal Law- The Protection of Women
from Domestic Violence Act-2005-Sections
12, 23, 31 & 32 - Code of Criminal
Procedure,
1973-Section
300-Applicant
along with her handicapped son was
thrown out of her domestic unit
-
Proceedings under Section- 12 of the D.V
Act initiated- Interim maintenance of
Rs.8,000/- per month awarded-Opp. Party
no.2 declined to adhere to the directions
of executing court for the recovery of
Rs.2.64 lacs and consequently was sent
behind the bars for 30 days-Subsequent
application u/s 31 moved for issuance of
"fresh recovery warrants" rejected by the
trail court taking recourse of Sec 300
CrPC-Reasoning adopted by the court
below is palpably myopic and puerile-
Impugned order is per se absurd and total
non-application of correct law- Exercise of
power u/s 31 of the Domestic Violence Act
is a mode of enforcement of the alleged
protection orders u/s 18 of the Act and it
is
distinguished
from
the
mode
of
satisfaction and the liability which can
only be made by means of the an actual
payment
-Result-Impugned
order
quashed-(Para 3 to 17)

Application U/s 482 CrPC disposed off. (E-15)

List of Cases cited:

1. Smt. Kuldip Kaur Vs Surender Singh & anr.,
1989 SCC (1) 405

2. Shantha @ Ushadevi & anr. Vs B.G.
Shivananjappa, (2005) 4 SCC 468

3. Poongodi & anr. Vs Thangavel, (2013) 10
SCC 618

(Delivered by Hon'ble Rahul Chaturvedi, J.)

(1). Heard Shri Akshay Kumar,
learned counsel for applicant and learned
A.G.A. for the State of UP. Perused the
record.

(2). Extraordinary powers of this
Court is being invoked by the applicant u/s
710 INDIAN LAW REPORTS ALLAHABAD SERIES
482
Cr.P.C.
to
quash
order
dated
23.01.2023 passed by the Civil Judge
(Junior Division)/F.T.C. (Crime against
Women), Moradabad in Execution Case
No.697 of 2022 (Smt. Hasina Khatoon vs.
Ahmad @ Ramzani) u/s 31 of the Domestic
Violence Act, 2005, arising out of Case
No.10095 of 2017 (Hasina Khatoon vs.
Ahmad Ali) u/s 12 of the Domestic
Violence Act by which the court below has
rejected
the
claim
of
applicant
for
maintenance amount of Rs.2.64 lacs on the
ground that the opposite party no.2 has
undergone an imprisonment of one month,
and thus, the balance amount cannot be
claimed from the opposite party no.2.

(3). Before coming to the actual legal
aspect of the issue, it is imperative to spell
out the bare skeleton facts of the case to
appreciate the controversy in its correct
perspective.

(a).
The
applicant
Hasina
Khatoon got married with opposite party
no.2 on 23.5.1990 as per the Muslim rites,
rituals and customs. This couple was
blessed with one son, unfortunately he was
handicapped. It seems that there was deep
rooted discord between the husband and
wife on account of various factors,
consequentially the opposite party no.2
kicked her out along with her handicapped
son on 21.7.1995. Thus, a usual proceeding
u/s 498A IPC and other allied sections was
initiated against the opposite party no.2.

(b) After some time, on account
of intervention of certain well-meaning
persons of the society and respectable
members and with the help and aid of their
relatives, better sense prevailed upon the
opposite
party
no.2
thereafter
a
compromise deed was executed inter-se. As
a consequence thereof, the applicant started
living with opposite party no.2. After
sometime, the applicant was again thrown
out of with her handicapped son from her
domestic unit on 20.5.2017 and since then
she is residing in a rented accommodation
along with her handicapped son in most
pathetic condition, having no fixed source
of income.

(c). It is further contended by
learned counsel for the applicant, that
opposite party no.2 has sufficient source of
income and by a rough estimate he is
earning above Rs.50,000/- per month from
various sources.

(d) The applicant was not having
any means of earning, wholly dependent
upon her husband, who is still willfully
ignoring her and her handicapped son, thus,
she was running from pillar to post. Under
compelling circumstances, the applicant
filed a proceeding under Section- 12 of the
Domestic Violence Act having Case
No.20095 of 2017 (Hasina Khatoon vs.
Ahmad Ali) in the court of Additional
Chief Judicial Magistrate-IV, Moradabad.

(e) As the applicant was in dire
need of money so as to make both the ends
meet for herself and her handicapped son,
and therefore, she moved yet another
application under Section- 23 of the
Domestic Violence Act, seeking an exparte interim order keeping in view the
exigency of the circumstances.

(f) After service of notice upon
opposite party no.2, the opposite party no.2
has filed his objection denying the
allegations made in the claim.

(g) Having thrashed the material
on record, the court below vide order dated
19.7.2019 allowed applicant's application
4 All. Smt. Hasina Khatoon Vs. State of U.P. & Anr.
711
for interim maintenance and directed
opposite party no.2 to pay Rs.4,000/- to the
applicant and Rs.4,000/- to his handicapped
son, totalling Rs.8,000/- per month, payable
on 10th day of every month.

(h) Aggrieved by the aforesaid
interim order dated 19.7.2019, opposite party
no.2 preferred an appeal having Criminal
Appeal No.41 of 2019 (Ahmad Ali @
Ramzani vs. State of U.P. and others), but the
Additional Session Judge, Moradabad vide its
order dated 01.4.2022 have rejected the
appeal preferred by opposite party no.2.

(i) Opposite party no.2, aggrieved
by order dated 01.04.2022, again came to this
Court by filing Crl. Misc. Application u/s 482
No.11881 of 2022 (Ahmad Ali @ Ramzani
vs. State of U.P. and two others), but sensing
the adverse observation of the Court, learned
counsel for opposite party no.2 expressed his
desire to enter into a compromise with the
applicant and on this ground, without
adverting anything on the merit of the case,
aforesaid 482 application was dismissed on
02.11.2022.

(j) Opposite party no.2 have
exploited all the avenues available to him and
resorted to gimmicks and chicanery so that he
had not to pay single penny to the applicant,
under the circumstances left with no other
option, applicant Hasina Khatoon has moved
an execution case for compliance of order
dated 19.7.2019 passed by the court below
and has prayed for issuance of recovery
warrant against opposite party no.2 for
recovery of totalling amount of Rs.2.64 lacs
for the period of July, 2019 to April, 2022
after computing at the rate of Rs.8,000/- per
month.

(k) The court below on 29.9.2022
was pleased to pass a detailed order in
Execution Case No.697 of 2022, whereby
the recovery warrants were issued against
opposite
party
no.2
Ahmad
Ali
@
Ramzani. Pursuant to aforesaid recovery
warrant, when opposite party no.2 has
failed to comply with the order, he was
arrested by the police and produced before
the court below on 30.10.2022 in police
custody and was sent to district jail
Moradabad.

(l) It was pleaded by learned
counsel for the applicant that since opposite
party no.2 declined to adhere to the
directions
of
executing
court
and
consequently he was sent behind the bars
for 30 days vide order dated 21.11.2022.
Order dated 21.11.2022 is being quoted
hereunder :

"21.11.2022

आि जवपक्षी अहमद अली उर्थ रमिानी पुत्र स्व०
िुम्मा जनवासी शाहपुर, मुबारकपुर उर्थ खोकरपुर र्ाना छिलैट
जिला मुरादाबाद, को न्यायालय द्वारा िारी जकए गए ररकवरी
जगरफ्तारी वारंट मूल्य 2,64,000/- रूपये की वसूली हेतु जदनांक
30.10.2022 को ररमाण्ड मजिस्रेट द्वारा िेल भेिा गया र्ा।
जवपक्षी आि िेल से न्यायालय में उपजस्र्त आया। जवपक्षी से
न्यायालय द्वारा पूछा गया जक क्या वह उपरोक्त वजणथत धनराजश िमा
करने के जलए तैयार है। जवपक्षी द्वारा वजणथत संपूणथ धनराजश िमा करने
से इंकार जकया गया। ररकवरी के सम्बन्ध में जवपक्षी को 30 जदन की
न्याजयक जहरासत में रखा िाना र्ा परन्तु जवपक्षी का धारा-309
सी०आर०पी०सी० का वारंट बन गया र्ा। अतः धारा-309
सी०आर०पी०सी० का वारंट जनरस्त जकया िाता है। जवपक्षी को 30
जदन की न्याजयक जहरासत में रखने हेतु आदेजशत जकया िाता है।
अतः जवपक्षी को जदनांक 30.11.2022 तक या उपरोक्त वजणथत
धनराजश िमा करने तक जसजवल कारागार में भेिा िाता है। वाद
दीवानी प्रकृजत का है।"

(m) Thus, from the aforesaid
order it is clear that the court has directed
to send the opposite party no.2 to a civil
prison for 30 days i.e. up to 30.11.2021 or
712 INDIAN LAW REPORTS ALLAHABAD SERIES
till such time he deposits the outstanding
maintenance amount. Thus, the underline
idea to send opposite party no.2 in jail is to
exert pressure upon him so that he may
cough up the outstanding maintenance
amount. In fact, this was a mode of
enforcement of the order and not a mode of
satisfaction. The court was insisting that the
opposite
party
no.2
must
pay
the
outstanding maintenance amount.

(n) From the aforesaid, it is culled
out that the stubborn opposite party no.2
did not budge a single inch to pay the
outstanding maintenance amount, rather he
preferred to go behind the bars.

(o) After expiry of 30 days, on
30.12.2022
opposite
party
no.2
was
released from jail, even though, he has not
bothered
to
pay
the
outstanding
maintenance amount of Rs.2.64 lacs to the
applicant. Under compelling circumstances,
the applicant moved yet another application
on 17.1.2023 before the court below for
issuance of "fresh recovery warrants"
against
opposite
party
no.2.
This
application, contended by learned counsel
for the applicant, was surprisingly partly
rejected by the court concerned vide order
dated 23.01.2023 and issued recovery
warrant for the period of October, 2022 to
January,
2023
only
for
a
sum
of
Rs.32,000/-.
Relevant
portion
of
the
impugned order dated 23.01.2023, is being
reproduced herein below :-

"सुना एवं पत्रावली का अवलोकन जकया।

पत्रावली के अवलोकन से स्पष्ट है जक उक्त मुकदमें में
न्यायालय द्वारा जदनांक 29.09.2022 को जवपक्षी अहमद अली
के जवरूद्ध ररकवरी वारन्ट िारी जकया र्ा। जदनांक 30.10.2022
को वजणथत धनराजश िमा न करने के कारण जवपक्षी को 30 जदन की
न्याजयक जहरासत में भेिा गया र्ा, जिसके सम्बन्ध में अजभयुक्त एक
माह कारावास में रह चुका है। धारा- 300 दं०प्र०सं० 1973 में
उजल्लजखत है जक यजद जकसी अपराध में जवपक्षी को दोषजसद्ध जकया
िा चुका है तो उसी अपराध के जलये दोबारा दोषजसद्ध घोजषत नहीं
जकया िा सकता। मामले के तथ्यों एवं पररजस्र्जतयों को दृजष्टगत रखते
हुए जवपक्षी के जवरूद्ध देय धनराजश माह अक्टूबर 2022 से माह
िनवरी 2023 तक के जलये ररकवरी वारन्ट िारी जकया िाना
न्यायोजचत प्रतीत होता है। अतः ऐसी जस्र्जत में इस स्तर पर
आन्तररम भरण पोषण धनराजश 2,64,000/- की वसूली हेतु
प्रार्थना पत्र जनरस्त जकया िाता है तर्ा देय धनराजश माह अक्टूबर
2022 से माह िनवरी 2023 तक 32.000/- रू० की वसूली
हेतु ररकवरी वारंट िारी जकया िाता है। जवपक्षी के जवरूद्ध ररकवरी
वारंट िारी हो। "

(4). I have gone through the order
impugned
dated
23.01.2023
which
indicates that the reasoning adopted by the
court of F.T.C. (Crime Against Women),
Moradabad is palpably myopic and puerile,
inasmuch as, that the concerned court while
passing impugned order has taken recourse
of Section 300 of Cr.P.C., which speaks
about the doctrine of "autrefois convict and
autrefois acquit". The essentials of the
applicability of aforesaid Section 300 of
Cr.P.C. are :

(i) That he (the accused person)
had previously been tried by a court for an
offence.

(ii)
That
such
Court
was
competent to try that offence.

(iii) That he was either convicted
or acquitted of that offence, at the former
trial.

(iv) That such conviction or
acquittal still remains in force when a
subsequent proceeding has been brought
against him.

(v)
That
at
the
subsequent
proceeding he is being tried again-(a) for
4 All. Smt. Hasina Khatoon Vs. State of U.P. & Anr.
713
the same offence; or (b) on the same facts
for any other offence for which a different
charge might have been made under s.
221(1)-(2).

(5). Now comparing aforementioned
essentials with the reasoning given in the
impugned order, indicates that the earlier
part of the order for sending the opposite
party no.2 in jail is not for any offence nor
he was convicted for any offence. Since he
was a defaulter in paying the outstanding
maintenance amount, that is why, he has to
face civil prison so that he may pay the
maintenance amount, and therefore, the
reasoning adopted by the court concerned
while passing impugned order is per se
absurd and total non-application of correct
law.

(6). Now coming to yet another aspect
of the issue i.e. the application for
execution
under
Section-31
of
the
Protection of Women from Domestic
Violence Act, 2005 (Act No.43 of 2005).
Before delving into this legal point, it is
imperative to have a fleeting glance over
the object of "The Protection of Women
from Domestic Violence Act, 2005". The
OBJECT speaks that aforesaid Bill seeks to
provide the following objects :

"(i). It covers those women who
are or have been in a relationship with the
abuser where both parties have lived
together in a shared household and are
related by consanguinity, marriage or
through a relationship in the nature of
marriage
or
adoption.
In
addition,
relationships with family members living
together as a joint family are also included.
Even those women who are sisters, widows,
mothers, single women, or living with the
abuser are entitled to legal protection
under the proposed legislation. However,
whereas the Bill enables the wife or the
female living in a relationship in the nature
of marriage to file a complaint under the
proposed enactment against any relative of
the husband or the male partner, it does not
enable any female relative of the husband
or the make partner to file a complaint
against the wife or the female partner.
(ii) It defines the expression "domestic
violence" to include actual abuse or threat
or abuse that is physical, sexual, verbal,
emotional or economic. Harassment by
way of unlawful dowry demands to the
woman or her relatives would also be
covered under this definition.

(iii). It provides for the rights of
women to secure housing. It also provides
for the right of a woman to reside in her
matrimonial home or shared household,
whether or not she has any title or rights in
such home or household. This right is
secured by a residence order, which is
passed by the Magistrate.

(iv). It empowers the Magistrate
to pass protection orders in favour of the
aggrieved person to prevent the respondent
from aiding or committing an act of
domestic violence or any other specified
act, entering a workplace or any other
place frequented by the aggrieved person,
attempting to communicate with her,
isolating any assets used by both the
parties and causing violence to the
aggrieved person, her relatives or others
who provide her assistance from the
domestic violence.

(v). It provides for appointment of
Protection Officers and registration of nongovernmental organisations as service
providers for providing assistance to the
aggrieved person with respect to her
714 INDIAN LAW REPORTS ALLAHABAD SERIES
medical examination, obtaining legal aid,
safe shelter, etc."

(7). Since the aforesaid application
has been moved under Section-31 of the
Protection of Women from Domestic
Violence Act, as such, it is imperative to
quote Sections 31 and 32 of this Act, which
reads thus :

"31. Penalty for breach of
protection order by respondent.--

(1) A breach of protection order,
or of an interim protection order, by the
respondent shall be an offence under this
Act
and
shall
be
punishable
with
imprisonment of either description for a
term which may extend to one year, or with
fine which may extend to twenty thousand
rupees, or with both.

(2) The offence under sub-section
(1) shall as far as practicable be tried by
the Magistrate who had passed the order,
the breach of which has been alleged to
have been caused by the accused.

(3) While framing charges under
sub-section (1), the Magistrates may also
frame charges under section 498A of the
Indian Penal Code (45 of 1860) or any
other provision of that Code or the Dowry
Prohibition Act, 1961 (28 of 1961), as the
case may be, if the facts disclose the
commission of an offence under those
provisions.

32. Cognizance and proof.--

(1) Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the offence
under sub-section (1) of section 31 shall be
cognizable and non-bailable.

(2) Upon the sole testimony of the
aggrieved person, the court may conclude
that an offence under sub-section (1) of
section 31 has been committed by the
accused."

(8). The provisions of aforesaid
sections speak about the penalty for breach
of protection by the respondents. Thus, it is
evident that the breach of protection order,
or of an interim protection order, by the
respondent shall be an offence under this
Act
and
shall
be
punishable
with
imprisonment of either description for a
term which may extend to one year, or with
fine which may extend to twenty thousand
rupees, or with both.

(9). On this score, it has been
submitted that vide order dated 29.9.2022
while issuing the recovery warrant against
opposite
party
no.2,
the
police
on
30.10.2022 have arrested the opposite party
no.2 and sent him to District Jail,
Moradabad by passing an order mentioned
above, whereby it has been mentioned that
the applicant was directed to remain in jail
up to 30.11.2022 or till the deposit of
outstanding amount of Rs.2.64 lacs. It
seems that the opposite party no.2 has
preferred earlier one and served out his
time up to 30.11.2022 (say about one
month) in jail to allegedly absolve him
from the liability of paying outstanding
maintenance amount.

(10). In this regard it has been
contended by learned counsel for the
applicant that this was not an object of the
Protection of Women from Domestic
Violence Act. This in fact is social
legislation in tenting the wives and the
children and levying the responsibility
upon the shoulders of husbands to maintain
their wives and children. Serving out in jail
4 All. Smt. Hasina Khatoon Vs. State of U.P. & Anr.
715
for month, would not absolve the opposite
party no.2 from the liability of maintaining
his wife and children. Sending a person
into jail is a mode of deterrence so that he
may clear off the outstanding maintenance
amount and keep on paying regularly so
that his wife and children may not die in a
destitute condition. This is the precise
underline idea which has been expatiated
upon by the Hon'ble Apex Court in the case
of Smt. Kuldip Kaur vs. Surender Singh
and another, 1989 SCC (1) 405. The ratio
laid down in this case may be usefully
recalled and applied in the present case.
Exercise of power under Section-31 of the
Domestic Violence Act is a mode of
enforcement of the alleged protection
orders under Section-18 of the Act and it is
distinguished from the mode of satisfaction
and the liability which can only be made by
means of the an actual payment. Relevant
portion of the order in Smt. Kuldip Kaur
(supra) is being quoted herein below :

"A distinction has to be drawn
between a mode of enforcing recovery on
the one hand and effecting actual recovery
of the amount of monthly allowance which
has fallen in arrears on the other.
Sentencing a person to jail is a `mode of
enforcement'. It is not a `mode of
satisfaction' of the liability. The liability
can be satisfied only by making actual
payment of the arrears. The whole purpose
of sending to jail is to oblige a person
liable to pay the monthly allowance who
refuses to comply with the order without
sufficient cause, to obey the order and to
make the payment. The purpose of sending
him to jail is not to wipe out the liability
which he has refused to discharge Be it
also realised that a person ordered to pay
monthly allowance can be sent to jail only
if he fails to pay monthly allowance
'without sufficient cause' to comply with the
order. It would indeed be strange to hold
that a person who `without reasonable
cause' refuses to comply with the order of
the Court to maintain his neglected wife or
child would be absolved of his liability
merely because he prefers to go to jail
sentence of jail is no substitute for the
recovery of the amount of monthly
allowance which has fallen in arrears
Monthly allowance is paid in order to
enable the wife and child to live by
providing with the essential economic
wherewithal. Neither the neglected wife nor
the neglected child can live without funds
for purchasing food and the essential
articles to enable them to live. Instead of
providing them with the funds, no useful
purpose would be served by sending the
husband to jail Sentencing to jail is the
means for achieving the end of enforcing
the order by recovering the amount of
arrears. It is not a mode of discharging
liability. The section does not say so. The
Parliament in its wisdom has not said so
commence does not support such a
construction. From where does the Court
draw inspiration for persuading itself that
the liability arising under the order for
maintenance would stand discharged upon
an effort being made to recover it? The
order for monthly allowance can be
discharged
only
upon
the
monthly
allowance being recovered.........."

(11). In yet another case of Shantha
@
Ushadevi
&
Anr
vs.
B.G.
Shivananjappa,
(2005)
4
SCC
468,
whereby it has been held that liability to
pay the maintenance amount u/s 125
Cr.P.C. or in the instant enactment is in
nature of continuing liability. The nature of
right to receive the maintenance and the
concomitant liability to pay goes hand in
hand and it cannot be substituted by any
civil imprisonment.
716 INDIAN LAW REPORTS ALLAHABAD SERIES

(12). In the case of Poongodi & Anr
vs. Thangavel, (2013) 10 SCC 618 it was
held by the Hon'ble Apex Court that the
proviso of Section 125(3) Cr.P.C. signifies
that it is a mode of enforcement i.e. sending
a defaulter to a civil prison and does not
create any bar or affects the actual right of
receiving maintenance amount from the
said defaulter. It lays down the procedure
for recovery of maintenance from a
defaulter and compel him to clear off the
dues. Sending a defaulter to jail is not
going to serve the object of Enactment. It
would not going to absolve the defaulter
from liability accrued upon him by way of
his status as husband.

(13). Thus, taking into account the
help from the aforesaid decisions of the
Hon'ble Apex Court, this Court is of the
considered opinion that the order impugned
dated 23.01.2023 can't be sustained in the
eyes of law and the F.T.C. Court while
passing the impugned order has grossly
erred by re-issuing the recovery warrant for
the revised period i.e. from October, 2022
to January, 2023. A defaulter has to be
dealt with an iron hand as per the
provisions of Section 31 that any violation
of protection order, or of an interim
protection order, by the respondent shall be
an offence under this Act and shall be
punishable with imprisonment of either
description for a term which may extend to
one year, or with fine which may extend to
twenty thousand rupees, or with both.

(14). This offence being non-bailable
and cognizable, therefore, the court ought
to have penalized the alleged defaulter for
imposing
the
maximum
punishment
according to the guilt, where the opposite
party no.2 has got remarried with some
other lady and enjoying the life, leaving
behind the applicant and her handicapped
son on road. This is an unpardonable
offence and a sin whereby the extraordinary punishment has to be levied
mercilessly. The Magistrate ought to have
proceeded against opposite party no.2
under Section -31 of the Protection of
Women from Domestic Violence Act and
even if fails to recover the amount, he can
put the immovable property to auction to
recover the entire outstanding maintenance
amount.

(15). Under these circumstances, I
have no hesitation to say that the impugned
order suffers from the vice of law
mentioned above, and therefore, impugned
order dated 23.01.2023 passed by the Civil
Judge (J.D./F.T.C. (Crime against Women),
Moradabad is hereby quashed, with the
following direction :-

(i) The court below concerned
will issue a fresh notice to the opposite
party no.2 to the effect that he shall clear
off the entire outstanding maintenance
amount by 15.5.2023 pursuant to order
dated 19.7.2019 i.e. from July, 2019 up to
30th
April,
2023
@
Rs.4,000+4,000=Rs.8000/- per month by
way of interim maintenance.

(ii) If the opposite party no.2 fails
to deposit the entire outstanding amount of
maintenance in this period, then the court
concerned shall proceed against opposite
party no.2 u/s 31 of the Protection of
Women from Domestic Violence Act for
penalizing him for imprisonment of one
year and a fine of Rs.20,000/- or both.

(iii) Simultaneously, in case of
failure to deposit the entire outstanding
amount within time prescribed, the court
concerned would attach the entire movable
and immovable property belonging to the
4 All. Uday Pratap Singh Vs. State of U.P.
717
opposite party no.2 and the said property
shall put to auction in order to recover the
outstanding maintenance amount to be paid
to the applicant.

(iv) Since the court concerned has
only fixed the interim maintenance, the
court concerned is expected to gear up the
matter and decide the Case No.10095 of
2017 (Hasina Khtoon vs. Ahmad Ali) u/s
12 of Domestic Violence Act on priority
basis and while calculating the final figure
of
maintenance
amount,
the
court
concerned
shall
adjust
the
interim
maintenance amount given by the opposite
party no.2 and shall be paid to the
applicant.

16. The aforesaid directions must be
adhered strictly within the time specified
above and no laxity would be tolerated in
compliance of the above directions.

17. With the above observations, this
application u/s 482 Cr.P.C. is disposed off.
----------
(2023) 4 ILRA 717
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.02.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 9701 of 2022

Uday Pratap Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Vinay Misra, Sri Anurag Shukla, Sri
Birendra Pratap Singh

Counsel for the Opposite Party:
G.A., Sri Pankaj Kumar Singh
Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 482-Identical
grievance raised in another Application u/s 482
Cr.P.C.-claim the C.D. & pen drive not providedas send to the laboratory for examination-if
found not tampered and if prosecution will rely
upon then question of providing a copy will
arise-though same prayer was made in the
other Application and was granted-no changed
circumstances.

Application dismissed. (E-9)

List of Cases cited:

1. OPTO Circuit India Ltd. Vs Axis Bank & ors.,
(2021)6 SCC, 701

2. Anita Kushwaha Vs Pushap Sudan, (2016) 8
SCC 509

3. U.O.I. Vs Prafulla Kumar Samal & anr.,
1979(3) SCC4

4. Superintendent and Remembrance of Legal
Affairs, West Bengal Vs Mohan Singh & ors.,
(1975)3 Supreme Court Cases, 706

5. Kanchan Kumar Vs St. of Bihar, (2022)9 SCC
577

6. Willie (William)Slaney Vs The St. of M. P., AIR
1956 SC 116

7. P.Gopalkrishnan @ Dileep Vs St. of Kerala &
anr. ,Criminal Appeal (SC) No. 1794 of 2019

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Anurag Shukla,Advocate
and Sri Birendra Pratap Singh, learned
counsel for the applicant, Sri Pankaj Kumar
Singh, learned counsel for the opposite
party no. 2 and Sri Anirudh Kumar Singh,
learned A.G.A.-I for the State.

2. By means of the instant application,
the applicant-petitioner has prayed that the
learned Additional Sessions Judge/F.T.C.-