# Smt. Poornima Asthana Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** Criminal Revision No. 300 of 2020
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-poornima-asthana-revisionist-v-state-of-u-p-anr-47270
- **Pages:** 5

## Headnote

(A) Criminal Law - Maintainability of
recall
application
in
a
criminal
revision
-
The
Code
of
criminal
procedure , 1973 - Section 64 -
Service
when
persons
summoned
cannot be found - Chapter XVIII of
Part III of The Allahabad High Court
Rules , 1952 - Rule 9 - Issue of notice,
Rule 12 - Service of notice by post or
publication , Rule 22 - Notice - No
party having knowledge of the case
can force the Court to first pass an ex
parte order and then claim right to
recall the same even when its bona
fide is not proved.(Para - 10)
Present criminal revision decided ex parte by
the order dated 4.1.2021 - against the
applicant-respondent No.2 - treating service
of notice sufficient upon him - Application
filed by the husband applicant-respondent
No.2 - to recall the final order dated 4.1.2021.

HELD:- The notice was issued upon the
applicant-respondent No.2 as per proforma
prescribed under Chapter XVIII/Rules 9 and
22 of Rules of 1952. Service of notice is duly
effected upon a family member of applicantrespondent No.2. This Court does not believe
the conduct of the applicant-respondent No.2
to be bona fide in not appearing in the case
and stating that the notice was not served
upon him. The applicant-respondent No.2 had
knowledge of the pendency of the present
case and when ex parte order was passed, he
claims his right to recall the order on ground
of non-appearance, which in the given facts
cannot be said to be bona fide. In view of the
aforesaid, the application for recall deserves
to be rejected with costs. (Para - 9,10)

Application for recall rejected. (E-6)

## Text

8 All. Smt. Poornima Asthana Vs. State of U.P. & Anr.
541
and the appeal is allowed. The appellant is
in jail. He be released forthwith, if he is
not wanted in some other case provided
the bail bonds are furnished on his behalf
before the trial court in compliance of
section
437-A
of
Cr.P.C.,
to
the
satisfaction of the court concerned.

17.
Let
the
copy
of
the
judgment/order be certified to the court
concerned for necessary information and
follow up action.
----------
(2021)08ILR A541
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Criminal Revision No. 300 of 2020

Smt. Poornima Asthana ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Rajerndra Prasad Sharma

Counsel for the Opposite Parties:
Govt. Advocate, Prem Shankar

(A) Criminal Law - Maintainability of
recall
application
in
a
criminal
revision
-
The
Code
of
criminal
procedure , 1973 - Section 64 -
Service
when
persons
summoned
cannot be found - Chapter XVIII of
Part III of The Allahabad High Court
Rules , 1952 - Rule 9 - Issue of notice,
Rule 12 - Service of notice by post or
publication , Rule 22 - Notice - No
party having knowledge of the case
can force the Court to first pass an ex
parte order and then claim right to
recall the same even when its bona
fide is not proved.(Para - 10)
Present criminal revision decided ex parte by
the order dated 4.1.2021 - against the
applicant-respondent No.2 - treating service
of notice sufficient upon him - Application
filed by the husband applicant-respondent
No.2 - to recall the final order dated 4.1.2021.

HELD:- The notice was issued upon the
applicant-respondent No.2 as per proforma
prescribed under Chapter XVIII/Rules 9 and
22 of Rules of 1952. Service of notice is duly
effected upon a family member of applicantrespondent No.2. This Court does not believe
the conduct of the applicant-respondent No.2
to be bona fide in not appearing in the case
and stating that the notice was not served
upon him. The applicant-respondent No.2 had
knowledge of the pendency of the present
case and when ex parte order was passed, he
claims his right to recall the order on ground
of non-appearance, which in the given facts
cannot be said to be bona fide. In view of the
aforesaid, the application for recall deserves
to be rejected with costs. (Para - 9,10)

Application for recall rejected. (E-6)

(Delivered by Hon'ble Vivek Chaudhary, J.)

(Crl. Misc. Application No.66006 of
2021: Application for Recall of Order
dated 4.1.2021)

1. This application is filed by the
husband
applicant-respondent
No.2
to
recall the final order dated 4.1.2021 passed
in the present criminal revision.

2. By the order dated 4.1.2021, the
present criminal revision was decided ex
parte
against
the
applicant-respondent
No.2, treating service of notice sufficient
upon him. By the said order, the
maintenance amount granted by the Court
below under Section 125 CrPC was
enhanced from 1500/- to Rs.3000/- per
month with effect from 8.10.2001 (from the
date of institution of proceeding) till
14.1.2020 (date on which judgment was
542 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the Court below) and from
Rs.4000/- to Rs.15,000/- per month from
14.1.2020 onwards, and any amount
deposited/paid by the applicant-respondent
No.2 in compliance of the order of Court
below dated 14.1.2020, was to be adjusted
in
the
said
payment.
Further,
the
maintenance from the date of institution of
application till 31.1.2021 was directed to be
paid in 15 equal monthly instalments
starting from 1.3.2021 onwards till the
entire amount is paid.

3. I have heard learned counsel for
parties on this recall application. Without
going into the issue, whether recall
application is maintainable in a criminal
revision or not, the recall application is
decided on merit.

4. The recall application is filed by
the
applicant-respondent
No.2
on
25.3.2021. In the recall application most of
paragraphs are with regard to the merits of
the case. With regard to grounds and facts
for recall of the order learned counsel for
applicant-respondent No.2 referred to para
2, para 17 to 19 and para 64 of the affidavit
filed in support of the recall application.
The
said
paragraphs
state
that
the
applicant-respondent No.2 is not residing
on the address on which the notice was
sent. In paragraph 17 to 19, the applicantrespondent No.2 has stated that he has not
received notice of aforesaid case and thus,
could
not
appear;
the
notice
was
deliberately sent to the address where
applicant-respondent No.2 is not residing,
only to deprive him from appearance in the
case; the notice was served upon his
nephew (Bhanja) who is not a family
member and, therefore, the service is not
sufficient as per Section 64 of the CrPC.
The Court has wrongly noted, in paragraph
2 of the order dated 4.1.2021 of this Court,
that service under Section 64 of the CrPC is
sufficient. On the aforesaid grounds, the
learned counsel for applicant-respondent
No.2 submits that this is a fit case for recall
of order as the same is passed without
proper service of summons upon the
applicant-respondent No.2 as per Section
64 of the CrPC.

5. Opposing the same, learned
counsel for petitioner states that service is
sufficient upon the Bhanja who is a family
member of the applicant-respondent No.2.
The applicant-respondent No.2 throughout
was aware of the proceedings and he
himself admits that there are around 20
different cases pending between him and
the petitioner. In such a situation, it cannot
be said that applicant-respondent No.2 was
not aware of the present proceedings. The
applicant-respondent No.2 has nowhere
stated that he never resided on the said
address. In all the paragraphs, he merely
states that "he is" not residing on the said
address. In fact, he was at the relevant time
residing at the same address. It is further
stated that on the notice which was sent to
the applicant-respondent No.2, the server
has also noted his mobile number and
stated that applicant-respondent No.2 is
also informed on the said mobile number.
This fact is not disputed by the applicantrespondent No.2 or his affidavit or by his
counsel during arguments.

6. Chapter XVIII of Part III of The
Allahabad High Court Rules, 1952 (Rules
of 1952) provides proceedings other than
original trials. Rule 9 of Chapter XVIII of
Part III of Rules of 1952 provides that if an
appeal or revision is not dismissed
summarily a day shall be fixed for its
hearing and notices in the prescribed form
shall be issued. For convenience, the said
Chapter XVIII Rule 9 is quoted as under:-
8 All. Smt. Poornima Asthana Vs. State of U.P. & Anr.
543

"9. Issue of notice.-- If an appeal
is not dismissed summarily a day shall be
fixed for its hearing and notices in the
prescribed form shall be issued.

If an application for revision or
other application is not rejected and an
order directing the issue of notice is made, a
day shall be fixed for its hearing and notices
in the prescribed form shall be issued.

After notices have been issued in
an appeal or revision the record shall be sent
for unless otherwise ordered.

In the case of an appeal under
Section 341 of the Code of Criminal
Procedure, 1973, the record of the case out
of which the proceedings under appeal arose
shall also be sent for unless otherwise
ordered." (emphasis added).

7. The said fact is further clear from
Chapter XVIII Rule 22 which provides that
notices in different classes of cases shall,
unless otherwise orders, be issued as
indicated below which includes a revision
also. Rule 22 is also quoted below:-

"22. Notice :- Notice in different
classes of cases shall, unless otherwise
ordered, be issued as indicated below,
namely-

(1) Appeal :- Where an appeal has
not been dismissed summarily notice of the
time and place at which such appeal will be
heard shall be given to-

(i) the appellant or his Advocate,
or, where the State is the appellant, to the
Government Advocate, and

(ii) where the State is not the
appellant, to the Government Advocate,
and, where the State is the appellant to the
respondent as also to the Court appealed
from.

(2) Revision :- Where notice has
been directed to be issued, notice shall be
given to the applicant, if any, or his
Advocate and the Government Advocate
as also to such opposite parties as may be
arrayed in the application. Where the
State is the applicant notice shall be given
to the Government Advocate and such
opposite parties as may be arrayed in the
application.

Where the Court acting under
Section 401 of the Code of Criminal
Procedure, 1973 directs notice to be
issued, notices shall be given to the
Government Advocate and the accused or
in a case in which there has been no
conviction or acquittal, the parties affected
by the order passed in the case.

(3) Reference :- Where notice has
been directed to be issued on a reference
93[under Section 395 of the Code of
Criminal Procedure, 1973], notice shall be
given in accordance with the second
paragraph of Clause (2).

In a reference under Section 366
of the Code of Criminal Procedure, 1973,
notice shall be given to the Government
Advocate and, if possible, to the accused or
his guardian or Advocate.

In a reference under section 318
of the Code of Criminal Procedure, 1973,
notice shall be given to the Government
Advocate and, if possible, to the accused or
his guardian or Advocate.

(4) Miscellaneous Application :-
In a miscellaneous application notice shall
544 INDIAN LAW REPORTS ALLAHABAD SERIES
be given to the applicant, the Government
Advocate and the opposite parties and
where the application is on behalf of the
State to the Government Advocate and the
opposite parties Provided that no notice of
an application under Section 378 (4) of the
Code Criminal Procedure, 1973 need be
issued to the accused opposite party."
(emphasis added)

8. Chapter VIII Rule 12 of Rules of
1952 further deals with service of notice by
post or publication. It reads as follows:-

"12. Service of notice by post
or publication.- A notice, in addition to
the court notice, may also be served by
the
petitioner/appellant
through
his
Advocate
to
the
respondent(s)
by
registered post or speed post or by such
courier service, as may be approved by
the court, or any other electronic mode
and file affidavit of service accompanied
by proof thereof or with the permission of
the
court
by
substituted
service,
publishing
the
notice
in
a
daily
newspaper, having wide circulation in the
districts,
in
which
the
defendant
/respondent is last known to have actually
or
voluntarily
resided/
carried
on
business or personally worked for gain;

Provided that where an order for
publication of notice has been passed by
the Court or by the Registrar General, as
the case may be, the party on whose behalf
the notice is to be published shall, within
seven days from the date of the order,
obtain the tentative date from the office on
the prescribed form of the notice duly filled
in by the party or his counsel and shall get
it published before the date fixed in a daily
newspaper circulating in the locality in
which the respondent or the opposite party,
as the case may be, is last known to have
actually and voluntarily resided, carried on
business or personally worked for gain.

Provided further that the party or
his counsel getting the notice published as
aforesaid shall so arrange that the notice is
published at least ten days before the date
fixed in the notice and shall file a copy of
the newspaper containing the notice before
the Registrar General a week before the
date fixed.

Provided also that where the
copy of the newspaper is not supplied
within the time prescribed in the preceding
proviso, the case or the application, as the
case may be, on which the order for
publication of notice had been passed, shall
be listed before the Court for such orders
as the Court deems fit.

Explanation I :- Where the party
fails to file the copy of the newspaper he
shall be deemed to have committed default
in supplying the notice, and the provisions
of Rule 4 of Chapter XII shall mutatis
mutandis apply in such cases.

Explanation II :- A notice sent by
registered post shall, unless it is received
back from the post office as undelivered, be
deemed to have been served at the time at
which it would be delivered in the ordinary
course of post."

9. The notice was issued upon the
applicant-respondent No.2 as per proforma
prescribed under Chapter XVIII/Rules 9
and 22 of Rules of 1952. Therefore, the
summons were not issued in the present
criminal revision under the provisions of
CrPC. Thus there is no question of
applicability of Section 64 CrPC. The
notices were issued under the Rules of
1952 in the present proceedings. The said
8 All. Smt. Sitara Devi Vs. State of U.P. & Anr.
545
notice was duly served upon the applicantrespondent No.2. There is no compulsion
that notice be served upon the male family
member of party. Service of notice is duly
effected
upon
a
family member
of
applicant-respondent No.2. It is nowhere
disputed that notice is duly served upon the
Bhanja of applicant-respondent No.2. It is
nowhere
disputed
by
the
applicantrespondent No.2 that he was informed on
phone with regard to notice of the present
proceedings.
Further,
the
applicantrespondent No.2 has also nowhere stated
that he never lived on the address on which
the notice was sent. The only repeated
statement,
made
by
the
applicantrespondent No.2 in the affidavit and even
in the Court is, that, he is not residing on
the said address.

10. Looking into the entirety of above
noted facts and circumstances of the case
and also the long drawn litigation, as
admitted by the applicant-respondent No.2
himself in his affidavit in support of recall
application, this Court does not believe the
conduct of the applicant-respondent No.2
to be bona fide in not appearing in the case
and stating that the notice was not served
upon him. The applicant-respondent No.2
cannot be permitted to unnecessarily
prolong the proceedings, pending before
this Court. It is the duty of parties to fully
cooperate in the early disposal of case. No
party having knowledge of the case can
force the Court to first pass an ex parte
order and then claim right to recall the
same even when its bona fide is not proved.
The present case falls in such a category.
The
applicant-respondent
No.2
had
knowledge of the pendency of the present
case and when ex parte order was passed,
he claims his right to recall the order on
ground of non-appearance, which in the
given facts cannot be said to be bona fide.
In view of the aforesaid, the application for
recall deserves to be rejected with costs.

11. The application for recall is
rejected with costs which is quantified to
Rs.1000/-. The costs shall be deposited in
Registry by the applicant-respondent No.2
within three weeks from today.

(Crl. Misc. Application No.37728 of
2021: Application for Correction in the
Order dated 4.1.2021)

This application is filed on behalf of
the petitioner. The correction sought for,
are clerical in nature.

The application is allowed. The order
dated 4.1.2021 is corrected in the following
manner:-

(1) In para 6 line 5 of the order, the
word "petitioner" is replaced with word
"opposite party No.2".

(2) In para 7 line 8 of the order, the
word, "daughter" is replaced with word
"son".
----------

(2021)08ILR A545
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Revision No. 510 of 2020

Smt. Sitara Devi ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Kanchan Chaudhary, Sri C.L. Chaudhary