# Smt. Rani Devi Revisionist v. State of U.P. & Ors

- **Citation:** (2016) 7 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-13
- **Bench:** Prabhat Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rani-devi-revisionist-v-state-of-u-p-ors-44113
- **Pages:** 3

## Headnote

Criminal Revision-Protection of Women from Domestic Violence Act, 2005-Sections 13 and
23-Rule 12 of the Protection of Women from Domestic Violence Rules, 2006-Ex-party orderService of notice-Mandatory compliance-Illegality-Setting aside of orders.
An ex-party interim order passed by the Magistrate under Section 23 of the Protection of Women from
Domestic Violence Act, 2005 without recording compliance of mandatory service of notice as required under
Section 13 of the Act read with Rule 12 of the Rules, 2006 is unsustainable in law. Dismissal of appeal
affirming such order, without addressing statutory non-compliance, is also without jurisdiction.

PROCEDURE:
Criminal Revision against:
(i) Order dated 08.09.2011 passed by Judicial Magistrate-I, Allahabad in Complaint Case No. 1796 of 2011
(Smt. Sudha & Ors. v. Prabhat Kumar & Ors.) under Section 23 of the Protection of Women from Domestic
Violence Act, 2005; and
(ii) Appellate order dated 06.03.2012 passed by Additional Sessions Judge, Court No. 5, Allahabad in
Criminal Appeal No. 239 of 2011 dismissing the appeal.

HELD:
The Magistrate failed to record satisfaction regarding service of notice as mandated under Section 13 of the
Act and Rule 12 of the Rules, 2006. The ex-party order was thus passed in violation of mandatory statutory
provisions. The appellate court erred in affirming the said order. Both orders are liable to be set aside.

DECISION:
Revision allowed.
Orders dated 08.09.2011 and 06.03.2012 set aside.
Matter remanded to the trial court to pass a fresh order after hearing the parties.
Revisionist directed to appear before the trial court on 27.07.2016.
7 All. Smt. Rani Devi Vs State of U.P. & Ors.
507
CASE LAW RELIED UPON:
S. Vishwanathan v. Smt. Pushpa,
2011 (74) ACC 43 (Uttarakhand)

## Text

506 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Appeal is allowed as indicated above.
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REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 864 Of 2012

Smt. Rani Devi ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Dhirendra Kumar Srivastava

Counsel for the Opposite Parties:
Learned Government Advocate, Sri M.P. Yadav, Sri Rajesh Kushwaha

HEADNOTE:
Criminal Revision-Protection of Women from Domestic Violence Act, 2005-Sections 13 and
23-Rule 12 of the Protection of Women from Domestic Violence Rules, 2006-Ex-party orderService of notice-Mandatory compliance-Illegality-Setting aside of orders.
An ex-party interim order passed by the Magistrate under Section 23 of the Protection of Women from
Domestic Violence Act, 2005 without recording compliance of mandatory service of notice as required under
Section 13 of the Act read with Rule 12 of the Rules, 2006 is unsustainable in law. Dismissal of appeal
affirming such order, without addressing statutory non-compliance, is also without jurisdiction.

PROCEDURE:
Criminal Revision against:
(i) Order dated 08.09.2011 passed by Judicial Magistrate-I, Allahabad in Complaint Case No. 1796 of 2011
(Smt. Sudha & Ors. v. Prabhat Kumar & Ors.) under Section 23 of the Protection of Women from Domestic
Violence Act, 2005; and
(ii) Appellate order dated 06.03.2012 passed by Additional Sessions Judge, Court No. 5, Allahabad in
Criminal Appeal No. 239 of 2011 dismissing the appeal.

HELD:
The Magistrate failed to record satisfaction regarding service of notice as mandated under Section 13 of the
Act and Rule 12 of the Rules, 2006. The ex-party order was thus passed in violation of mandatory statutory
provisions. The appellate court erred in affirming the said order. Both orders are liable to be set aside.

DECISION:
Revision allowed.
Orders dated 08.09.2011 and 06.03.2012 set aside.
Matter remanded to the trial court to pass a fresh order after hearing the parties.
Revisionist directed to appear before the trial court on 27.07.2016.
7 All. Smt. Rani Devi Vs State of U.P. & Ors.
507
CASE LAW RELIED UPON:
S. Vishwanathan v. Smt. Pushpa,
2011 (74) ACC 43 (Uttarakhand)

(Delivered by Hon'ble Prabhat Chandra Tripathi, J.)

1. List has been revised. Ms. Anamika Srivastava, Advocate holding brief of Sri D.K.
Srivastava, learned counsel for the revisionist, learned A.G.A. for the State of U.P. and Sri M.P.
Yadav, learned counsel for the opposite parties no.2 and 3 are present.

2. Heard learned counsel for the parties and perused the record.

3. This revision has been filed against the order dated 06.03.2012 passed by the learned
Additional Sessions Judge, Court No.5, Allahabad in Criminal Appeal No.239 of 2011 (Smt.
Rani Devi v. Smt. Sudha Jaiswar and others) as well as order dated 08.09.2011 passed by the
learned Judicial Magistrate- I, Room No.1, Allahabad in Complaint Case No.1796 of 2011 (Smt.
Sudha and others v. Prabhat Kumar and others).

4. It has been argued on behalf of the revisionist that the impugned order dated 08.09.2011
passed by the learned Judicial Magistrate- I, Room No.1, Allahabad in Complaint Case No.1796 of
2011 (Smt. Sudha and others v. Prabhat Kumar and others), under Section 23 of the Protection of
Women from Domestic Violence Act, 2005, Police Station Khuldabad, District Allahabad is
erroneous in the eye of law because it has been passed as an ex-parte order and the order dated
06.03.2012 passed by the learned Additional Sessions Judge, Court No.5, Allahabad in Criminal
Appeal No.239 of 2011 (Smt. Rani Devi v. Smt. Sudha Jaiswar and others), whereby the appeal
been dismissed is also beyond the jurisdiction and against the provisions mentioned in Section 13
of the Protection of Women from Domestic Violence Act, 2005 read with Rule 12 of the Protection
of Women from Domestic Violence Rules, 2006.

5. In the impugned order dated 08.09.2011 of the learned Judicial Magistrate- I, Room
No.1, Allahabad it is clearly mentioned that the order has been passed as an ex-parte and the same
has been affirmed by the court of learned Additional Sessions Judge, Court No.5, Allahabad vide
order dated 06.03.2012.

6. Learned counsel for the revisionist has relied upon the judgement of Uttarakhand High
Court in case of S. Vishwanathan v. Smt. Pushpa [2011 (74) ACC 43].

7. Section 13 of the Protection of Women from Domestic Violence Act, 2005 is a
mandatory section which cannot be over-sighted. Learned Magistrate has not complied with Rule
12 of the Protection of Women from Domestic Violence Rules, 2006 where it was required by him
to clearly mention about the service of notice. Resultantly, the impugned order dated 08.09.2011
passed by the learned Judicial Magistrate-I, Room No.1, Allahabad and the order dated 06.03.2012
of the Additional Sessions Judge, Court No.5, Allahabad are liable to be set aside.
508 INDIAN LAW REPORTS ALLAHABAD SERIES

8. For the reasons discussed above, this revision is summarily allowed. The impugned
order dated 08.09.2011 passed by the learned Judicial Magistrate-I, Room No.1, Allahabad and the
order dated 06.03.2012 of the Additional Sessions Judge, Court No.5, Allahabad are hereby set
aside.

9. Revisionist, Smt. Rani Devi is directed to appear before the trial court on 27th July,
2016. Learned trial court is directed to pass a fresh order after hearing the parties. In case she fails
to appear before the trial court personally or through the counsel on the date fixed i.e. 27th July,
2016 or on the date fixed thereafter by the said court, the trial court is at liberty to pass appropriate
order after hearing the opposite parties no.2 and 3.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2016

BEFORE

THE HON'BLE PRABHAT CHANDRA TRIPATHI, J.

Criminal Revision No.- 1090 Of 2014

Jameel Haider ...Revisionist
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Vivek Sharma

Counsel for the Opposite Parties:
Govt. Advocate

The revisionist by way of filing this revision has sought to quash the impugned judgement and order dated
24.2.2014 passed by the learned Sessions Judge, J.P. Nagar, District Amroha.

The revision of the opposite parties was allowed firstly; on the ground that the witnesses were
present on the spot but they have not made an attempt to stop the tractor on which the stolen
cut wood were being carried; secondly on the ground that on perusal of the enquiry paper No.12
b and 13 b produced by the opposite parties 'Neem' tree was not found standing on Gata No.138,
so there was no question of cutting the 'Neem' tree by them. The finding recorded by the
revisional court is against the face of evidence on record. Khasra of the said land clearly show
that certain neem and mango trees were standing on the land in question. Moreover, the
impugned order dated 24.02.2014 is liable to be set aside.Resultantly, revision is liable to be
allowed.

Held: Para-

Case Law discussed:
Nirmaljit Singh Hoon v. State of W.B., (1973) 2 SCC 753 : 1973 SCC (Cri) 521;