# Som Prakash Rawat @ Sanni & Ors v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-20
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 20843 of 2016
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/som-prakash-rawat-sanni-ors-v-state-of-u-p-anr-44922
- **Pages:** 6

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 & Protection of
Women from Domestic Violence Act,
2005- Sections 12, 18, 19, 21 & 22 -to
secure
ends
of
justice,
inherent
jurisdiction has to be exercised carefully
by the tests specifically laid down in the
section itself. (Para 8, 9, 10 & 11)

Domestic Violence Act, is special Act to provide
more effective protection to the right of
women, wherein, Magistrate after exercising
due procedure, has passed impugned order
against which appeal was preferred and this
appeal was decided by appellate court, hence,
there remains nothing for any indulgence, in
exercise of inherent power, under Section 482
Cr.P.C. for assessing judgment of appellate
court, being its second appellate court. (Para
12)

Application u/s 482 Cr.P.C. dismissed. (E6)

List of cases cited: -

## Text

4 All. Som Prakash Rawat @ Sanni & Ors. Vs. Stae of U.P. & Anr.
141
Accused-1 had given cheque of a higher
amount, it could have been utilized by
Drawer for realization of outstanding
dues, i.e., for discharge of debt or liability
and the mere fact that cheque contains
higher amount, will not dilute the liability
of drawee to the extent of amount which
was for discharge of "due debt" or
"liability" stood dishonoured.

6. Therefore, outrightly it cannot be
said that non encashment of cheque to the
extent it was for discharge of due debt and
liability would not come within the
purview of Section 138 of Act, 1981 and
hence contention that entire proceedings
are illegal and without jurisdiction cannot
be accepted.

7. In the two judgments relied by
applicants there was a clear case of
advance payment of which there was no
supply since contract frustrated for one or
the other reason hence Court held that a
cheque issued as advance payment, unless
liability or debt has accrued, cannot be
construed to have been issued for
discharge of any debt and liability. The
facts of present case are different, hence
both authorities are not applicable to
present case.

8. In the circumstances, I find no
merit in this application. Dismissed
accordingly. Interim order, if any, stands
vacated.
----------
(2019)12 ILR A141

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
20843 of 2016
 connected with Crl. Misc. Application (U/S
482 Cr. P.C.) No. 16296 of 2016

Som Prakash Rawat @ Sanni & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Kamlesh Kumar Dwivedi, Sri Sandeep
Kumar Keshari

Counsel for the Opposite Parties:
A.G.A., Sri Puneet Srivastava

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 482 & Protection of
Women from Domestic Violence Act,
2005- Sections 12, 18, 19, 21 & 22 -to
secure
ends
of
justice,
inherent
jurisdiction has to be exercised carefully
by the tests specifically laid down in the
section itself. (Para 8, 9, 10 & 11)

Domestic Violence Act, is special Act to provide
more effective protection to the right of
women, wherein, Magistrate after exercising
due procedure, has passed impugned order
against which appeal was preferred and this
appeal was decided by appellate court, hence,
there remains nothing for any indulgence, in
exercise of inherent power, under Section 482
Cr.P.C. for assessing judgment of appellate
court, being its second appellate court. (Para
12)

Application u/s 482 Cr.P.C. dismissed. (E6)

List of cases cited: -

1. St. of A.P. Vs Gour Sheety Mahesh J.T.
2010 (6) SCC 588

2.Hamida Vs Rashid (2008) 1 SCC 474,+

3.Monika Kumar Vs St. of U.P. (2008) 8 SCC
781
142 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application under Section
482 Cr.P.C. has been filed by Som
Prakash Rawat @ Sanni and 4 Ors.
against State of U.P. & Anr. with prayer
for allowing this application and thereby
quashing the order dated 16.04.2016
passed by learned Additional Chief
Judicial Magistrate, Court No.4, Aligarh
in Complaint Case No.584 of 2013 (Sarita
vs. Som Prakash Rawat @ Sanni and
Ors., under Sections 12, 18, 19, 21 and 22
and Protection of Women from Domestic
Violence Act, 2005 of Police Station
Sasani Gate, District Aligarh with order
dated 24.06.2016 passed by learned
Sessions Judge, Aligarh in Criminal
Appeal No.81/2016 (Som Prakash Rawat
@ Sanni Ors. vs. State of U.P. & Ors.)
with a further prayer for staying effect of
those two orders till disposal of this
proceeding.

2. Learned counsel for the applicants
argued that an application under Section
12, 18, 19, 21 and 22 of Protection of
Women from Domestic Violence Act of
Police Station Sasani Gate, District
Aligarh was moved before the court of
Additional Chief Judicial Magistrate by
Sarita wife of Som Prakash Rawat @
Sanni with a prayer for grant of Stridhan,
maintenance and residence in the house
where her husband and in-laws were
residing. Marriage in between, was
performed on 18.11.2010 and Rs.7,00,000
were spent in this marriage by her father.
Vipin Kumar gave a list of articles to be
purchased at Agra by money to be given
by her parents and this list was having
mention of double bed, Sofa set, LED 32
inch T.V., A.C., Fridge, utensils, clothes,
drawing table, dining table, dressing table,
motor-cycle and others. Rupees 5 lakhs in
cash was paid to Vipin Kumar, who is
brother-in-law of her husband but only
motor-cycle was shown at the time of
engagement. Rest money for purchase of
articles was said to be deposited at shops
and after marriage those articles will be at
their residence but after 15 days of
marriage, those articles could not be there.
The
relationship
became
strained,
accusation of torturing for demand of
dowry and violence, in form of domestic
violence, were said to be given to the
applicant, then after, the ornaments and
Stridhan were snatched by her in-laws and
she was ousted from her house. She went
to her parents, narrated the occurrence
and
made
a
complaint
to
police.
Persuasion was made by in-laws and
assurance for no further torture was made
and the applicant was taken by her
husband. Her husband was working in
L.G. Service Centre at Badaun and was
earning Rs.1,80,000/- per month. On the
basis of compromise entered in between,
she went to her in-laws house on
07.08.2012, she was taken at Ujhiani,
Badaun and was residing in a rented
portion. She lived there with her husband
from 7.8.2012 to 10.9.2012, but relations
were strained. Again she was sent to
house of Aligarh and she was not taken by
her husband. Again persuasion was made
with her in-laws and her husband, fatherin-law and Vipin Kumar came on
12.6.2013, then, demanded that unless the
demand is being fulfilled, no 'Bidai' will
take place. Thereafter, some hot talk and
scuffled took place. Accused-persons
abused her and an application under
Protection of Women from Domestic
Violence Act was moved on 13.6.2013,
wherein, prayer was made for protection.
Payment of Rs.5,00,000/- which was paid
in the marriage with further maintenance
4 All. Som Prakash Rawat @ Sanni & Ors. Vs. Stae of U.P. & Anr.
143
of Rs.5,000/- per month. In addition to it,
an accommodation for her at her in-laws
house. This was objected by her husband.
Marriage on 18.11.2010 was admitted fact
but payment of dowry and earning as
engineer
in
L.G.
Company
thereby
earning Rs.80,000/- per month as salary
was denied. He was with earning of
Rs.5,200/- per month. Applicant never
resided
with
him
after
18.09.2011.
Husband is an employee at L.G. Service
Centre at Badaun. No physical relation
was ever established by his wife and
Magistrate after hearing both sides
concluded with passing of judgment,
whereby
direction
for
payment
of
Rs.5,00,000/- within two month form the
date of judgment, in lieu of, 'Stridhan'
with a further payment of Rs.5,000/- per
month as maintenance was ordered.
Beside this, room for accommodation in
the house situated in Radhaswami Hajuri
Bhawan, Pipal Mandi, Agra along with its
amenities of toilet was directed, whereas,
the above house, in which in-laws were
residing was of Radhaswami Trust and it
was handed over to it. Marriage too was
dissolved by decree of divorce passed by
family court, against which application
for restoration was dismissed on merit and
the defective appeal is pending before
High Court. There was no stay by any
Court against above decree of dissolution
of marriage between both sides. Husband
got married and he was blessed with two
kids, with whom he is residing and under
above chain of circumstances, there was
no
possibility
for
accommodating
applicant in that house wherein he is
residing. Because she herself would not
like to be with family of husband, who is
having a second wife with her children.
The house which was directed to be given
is no more in possession of her in-laws,
rather, it was surrendered on 20.06.2017
to the above trust. The grant of Rs.5,000/-
per month as maintenance was also not
with any basis even then in compliance of
order of above court as well as order of
this Court passed in defective criminal
appeal, the same is being paid to applicant
Rs.5,00,000/- was ordered to be paid
without any basis and it was beyond the
capacity of applicant. Hence, this order
was challenged before the appellate court,
wherein learned Sessions Judge, Aligarh
in Criminal Appeal No.81 of 2016, heard
learned counsel for both sides and then
after dismissed appeal whereby confirmed
order of Magistrate. Above facts which
were raised before both of the courts,
could no be taken notice of. It was misuse
of process of law, hence, this application
under Section 482 Cr.P.C. with above
prayer for its allowance and thereby
setting aside both of impugned order
along
with
proceeding
filed
under
Protection of Women from Domestic
Violence Act.

3. Learned counsel for applicantrespondent
vehemently
opposed
the
argument with this contention that this
was a proceeding under Protection of
Women from Domestic Violence Act,
2005
which
is
a
socio-economic
legislation and other proceeding under
family court or before this Court is not of
any effect of this proceeding because it
was admitted that applicant is wife of
opposite party No.1. The alleged decree
of divorce was ex-parte decree, obtained
under fraud and there was no service of
process, hence, when it came in the
knowledge,
immediately
restoration
application was moved and trial court was
kind enough to allow application for
condonation of delay, but restoration
application was dismissed for which
appeal has been filed before this Court
144 INDIAN LAW REPORTS ALLAHABAD SERIES
and the same is pending for disposal.
Hence, dissolution of marriage is sub
judice. More so, an application was
moved before Superintendent of Police
and it was referred before mediation
centre,
where,
both
sides
appeared
continuously for more than two months
and husband always assured by extending
his inclination for taking his wife with
him and at no point of time, this was
disclosed that he had got a decree of
dissolution of marriage and he had
married second time. This fact was got
hidden by him. This itself shows by which
way he was operating, on one way, he was
appearing in mediation centre for taking
back his wife to show his inclination for
his innocence, on the other way, he was
having a decree
of
dissolution
of
marriage, obtained ex-parte, by way of
fraud, but it was not being disclosed.
Applicant being legally wedded wife, was
being extended cruelty and she moved
application for Protection from Domestic
Violence under above Act of 2005,
wherein report from District Probation
Officer was obtained and it was in respect
of above application, both sides were
given opportunity of producing their
evidences, evidences were furnished and
trial court passed judgment for protecting
applicant by way of direction for delivery
of Stridhan, by way of Rs.5,00,000/-, with
further maintenance at the rate of
Rs.5,000/-
per
month,
and
an
accommodation for residence in company
of in-laws. Though, it is there that above
premises has been surrendered and the
order regarding it cannot be complied
with. Because in-laws are not residing in
above premises and the second wife with
two kids is residing with husband, hence,
applicant will not be in a position to
reside under above circumstances, but she
had
been
protected
from
domestic
violence by impugned order which was
confirmed by appellate court, hence, in
exercise of inherent power of this Court,
under Section 482 of Cr.P.C., it is not
expected that Court will analyse factual
evidence and will replace finding of
appellate court, treating itself to be a
second appellate court. Hence, power
under Section 482 is to be used where
there is abuse of process of law and for
doing justice and for ends of justice, this
Court is to exercise above jurisdiction, but
by way of this application, a prayer for
exercise of appellate court has been made.
Hence, this application be dismissed.

4. Having heard learned counsel for
both sides and gone through the material
placed on the record.

5. It is apparent that Protection of
Women form Domestic Violence Act,
2005 was passed with an object to provide
more effective protection to the rights of
women,
guaranteed
under
the
Constitution, who are victim of violence
of any kind occurring within the family,
and for matters connected therewith or
incidental
thereto.
That
is
the
constitutional mandate was to be fulfilled
by this legislation to protect a women,
who is being subjected to cruelty or
violence, within a family. This act is other
than other acts and procedure given
therein like Family Court Act, Section
125 of Cr.P.C. etc. It being an act for
providing effective protection, besides
there being other provisions of protection,
too,
and
under
this
exercise,
this
application
was
moved.
Admittedly,
applicant is legally wedded wife and her
husband has admitted that, while he was
married with her, he was in Class-IV job
at Agra University, meaning thereby, he
was an employee of Class-IV at Agra
4 All. Som Prakash Rawat @ Sanni & Ors. Vs. Stae of U.P. & Anr.
145
University and able to maintain his wife,
that is why applicant was married with
her. Subsequent to it, he is busy in the job
at L.G. Shop Centre, but the above shop
has been said to be of the same Vipin
Kumar to whom worth Rs.5,00,000/- were
given at the time of marriage. Strained
relation is there. Applicant in her
statement has categorically said about the
cruelty being meted to her. She has been
cross-examined, wherein, she has said
about the violence given to her. This was
reported by District Probation Officer too.
The payment of Rs.5,00,000/- , in lieu of
dowry, was said on oath and it was said to
be for dowry and articles of households.
Husband in his cross-examination has
admitted to be registered owner of motorcycle which was said to be given in this
marriage, but he could not say as to when
and how this motor-cycle in his name got
registered. This motor-cycle has been said
to be given in dowry. In all Rs.5,00,000/-
cash for household articles to be used by
applicant, was said to have been given in
this
marriage
and
it
amounted
to
'Stridhan'.
Hence,
the
Trial
Court
Magistrate, after examining testimony of
both sides, concluded that applicant was
legally wedded wife of opposite party
No.1 and she was entitled for her
maintenance
for
coping
with
circumstances for which Rs.5,000/- is
being paid per month regularly which has
been admitted before this Court and
confirmed by this appellate court. In
above appeal, instituted against order,
dismissing restoration application moved
for restoration of divorce decree. There is
no dispute hence, husband, may be a
worker at L.G. Shop, or, he may be in
private job, is making payment Rs.5,000/-
per month as maintenance and he is to
maintain his wife, hence, this meager
amount of Rs.5,000/- per months was a
genuine amount and just maintenance
awarded by the Magistrate and this was
affirmed by appellate court.

6. Regarding Rs.5,00,000/- this was
proved to be given in the marriage by
parents of applicant for her household
articles which was usurpt by husband and
in-laws, hence, direction to pay back
above amount as 'Stridhan' was also with
all substance and evidence on record.

7. Regarding residence, it is
admitted that there is no possibility of
applicant to reside with her husband
where he is residing with his second wife
and its in another rented accommodation,
hence, that relief itself, being left over by
applicant, hence, the same is not being
pressed,
accordingly
for
that
no
adjudication is needed.

8.

In
all
above
facts
and
circumstances, it is apparent that husband,
who got this ex-parte divorce decree was
appearing before mediation centre in the
reference made by Superintendent of
Police and he didn't disclose above fact
that he had got an ex-parte dissolution of
marriage decree rather he continued to
assure that he will take his wife back. He
showed inclination to keep her, whereas,
he had filed a divorce suit and obtained
ex-parte divorce decree and subsequently
got married with second wife. Hence, on
the basis of facts and evidence on record,
order of trial court Magistrate as well as
appellate court is based on above facts
and was of correct perspective of law.

9. Apex Court in State of Andra
Pradesh vs. Gour Sheety Mahesh J.T.
2010 (6) SCC 588 has propounded that
while
exercising
jurisdiction
under
Section 482 Cr.P.C. of Court, High Court
146 INDIAN LAW REPORTS ALLAHABAD SERIES
could not ordinarily embark upon an
inquiry whether the evidence in question
is reliable or not or whether on a
reasonable apprehension of it, accusation
could not be sustained rather that is the
function of trial judge.

10. In Hamida vs. Rashid (2008) 1
SCC 474, Apex Court has propounded
that ends of justice would be better served
if valuable time of court is expand in
hearing
those
appeals
other
than
entertaining petition under Section 482
Cr.P.C. at an interlocutory stage, which
are profiled with some oblique motive in
order to circumvent prescribed procedure
or to delay the trial which enable to win
over the witness or disinterested in giving
evidence
ultimately
resulting
in
miscarriage of justice.

11. Apex Court further in Monika
Kumar vs. State of Uttar Pradesh (2008) 8
SCC 781 has propounded that inherent
jurisdiction under Section 482 Cr.P.C. has
to be exercised sparingly, carefully and
with caution and only when such exercise
is justified by the tests specifically laid
down in the section itself.

12. Section 482 Cr.P.C. provides that
nothing in this Code shall be deemed to
limit or affect the inherent powers of the
High Court to make such orders as may
be necessary to give effect to any order
under this Code, or to prevent abuse of
the process of any Court or otherwise to
secure the ends of justice. Meaning
thereby, inherent jurisdiction under this
Section provides this Court's power to
make such order as may be necessary to
give effect to any order under this Code or
to prevent abuse of process of law or
otherwise to secure the ends of justice.
Hence, to secure ends of justice, to
prevent abuse of process of any law, this
Court has been given this inherent
jurisdiction, beside being any other
provision
in
this
Code.
Whereas,
Protection of Women from Domestic
Violence Act, 2005 is special Act to
provide for more effective protection to
the right of women guaranteed under the
Constitution where a women is victim of
violence. Hence, it's a self contained Code
having procedure and power of appeal,
wherein, Magistrate after exercising due
procedure, has passed impugned order
against which appeal was preferred and
this appeal was decided by appellate
court, hence, there remains nothing for
any indulgence, in exercise of inherent
power, under Section 482 Cr.P.C. for
assessing judgment of appellate court,
being its second appellate court.

13. This application lacks merit and
is accordingly dismissed.

14. However, a portion of order
regarding residence has become inexecutable,
in
above
changed
circumstances, for which Magistrate will
take notice and will act in accordance
with law.
----------
(2019)12 ILR A146

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE,
J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
24277 of 2019

Santosh Kumar Singh ...Applicant
Versus
State of U.P.& Ors. ...Opposite Parties