# Tarun Pandit Revisionist v. State of U.P. & Anr. 572 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 1 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-06
- **Case number:** Criminal Revision No. 1154 of 2021
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarun-pandit-revisionist-v-state-of-u-p-anr-572-indian-law-reports-allahabad-48047
- **Pages:** 9

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Sections 397/401 & 125
- Hindu Marriage Act, 1955 - Section 24application-issue
of
overlapping
jurisdiction-in the present case divorce
petition has been filed by the husband
which is being contested by the wife who
preferred an appeal and also not accepted
the permanent alimony u/s 25 of Act
1955-recovery of maintenance under both
the sections 125 Cr.P.C. and 24 of Hindu
Marriage Act, shall not be allowedHowever,
there
is
no
bar
to
seek
maintenance both u/s 125 Cr.P.C. or
Hindu Marriage Act but court will have to
adjust or set off the amount awarded in
previous proceedings-Since she can not
accept the amount of permanent alimony
while the appeal is pending she has no
sufficient financial resources, she comes
in
the
category
of
destitute-Hence,
maintenance order passed u/s 125 Cr.P.C.
does not suffer from any illegality of
infirmity.(Para 1 to 16)

B.
Where
successive
claims
for
maintenance are made by a party under
different
statutes,
the
Court
would
consider an adjustment or set-off, of the
amount
awarded
in
the
previous
proceedings, while determining whether
any further amount is to be awarded in
the subsequent proceeding.(Para 8)

C. Claim for maintenance under the first
part of Section 125 Cr.P.C. is based on the
subsistence of marriage while claim for
maintenance of a divorced wife is based
on the foundation provided by Explanation
(b) to Sub-section (1) of Section 125
Cr.P.C..If the divorced wife is unable to
maintain herself and if she has not
remarried,
she
will
be
entitled
to
maintenance allownce.(Para 11)

The revision is dismissed.(E-6)

List of Cases cited:

## Text

1 All. Tarun Pandit Vs. State of U.P. & Anr.
571
deceased, which was sufficient in the
ordinary course of nature to cause the
death of the deceased. Therefore, in our
considered opinion, the case cannot be said
to be covered under clause (4) of Section
300 of IPC. We are, however, of the
considered opinion that the case of the
appellant is covered under Section 304
Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed."

33. On overall scrutiny of the facts
and circumstances of this case coupled with
medical evidence and the opinion of medical
officers and considering the principle laid
down by the Courts in above referred case
laws, we are of the considered opinion that
in the case in hand, from the angle of
septicemia
also,
offence
would
be
punishable under Section 304 Part II of IPC.

34. From the upshot of the aforesaid
discussion, it appears that the death of the
deceased was not premeditated. Appellants
had no intention to cause death of the
deceased and she died due to septicemia in
whole of her body which was not the direct
result of the injury sustained in the
accident. The instant case falls within the
purview
of
culpable
homicide
not
amounting
to
murder.
Hence,
entire
evidence on the record and position of law
in this regard permit us to convert the
conviction and sentence of all the accusedappellants from the offence punishable
under Section 302 of IPC into offence
punishable under Section 304 Part II of IPC.

35. The conviction and sentence of
accused-appellants under Section 302 read
with Section 34 of IPC is converted into
offence punishable under Section 304 Part II
read with Section 34 of IPC and, therefore,
we convict and sentence the accusedappellants
for
10
years
rigorous
imprisonment and Rs.10,000/- fine each.
They shall further undergo 1 year simple
imprisonment in case of default of fine.
Conviction and sentence of all accusedappellants for rest of the offences shall
remain intact. All the sentences shall run
concurrently.

36. In this way, appeal is liable to be
partly allowed. Accordingly, the appeal is
partly allowed as modified above. Record
and proceedings be sent back to the Trial
Court forthwith.
----------
(2022)01ILR A571
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1154 of 2021

Tarun Pandit ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Ankit Krishna

Counsel for the Opposite Parties:
G.A., Sri Siddharth Khare

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Sections 397/401 & 125
- Hindu Marriage Act, 1955 - Section 24application-issue
of
overlapping
jurisdiction-in the present case divorce
petition has been filed by the husband
which is being contested by the wife who
preferred an appeal and also not accepted
the permanent alimony u/s 25 of Act
1955-recovery of maintenance under both
the sections 125 Cr.P.C. and 24 of Hindu
Marriage Act, shall not be allowedHowever,
there
is
no
bar
to
seek
maintenance both u/s 125 Cr.P.C. or
Hindu Marriage Act but court will have to
adjust or set off the amount awarded in
previous proceedings-Since she can not
accept the amount of permanent alimony
while the appeal is pending she has no
sufficient financial resources, she comes
in
the
category
of
destitute-Hence,
maintenance order passed u/s 125 Cr.P.C.
does not suffer from any illegality of
infirmity.(Para 1 to 16)

B.
Where
successive
claims
for
maintenance are made by a party under
different
statutes,
the
Court
would
consider an adjustment or set-off, of the
amount
awarded
in
the
previous
proceedings, while determining whether
any further amount is to be awarded in
the subsequent proceeding.(Para 8)

C. Claim for maintenance under the first
part of Section 125 Cr.P.C. is based on the
subsistence of marriage while claim for
maintenance of a divorced wife is based
on the foundation provided by Explanation
(b) to Sub-section (1) of Section 125
Cr.P.C..If the divorced wife is unable to
maintain herself and if she has not
remarried,
she
will
be
entitled
to
maintenance allownce.(Para 11)

The revision is dismissed.(E-6)

List of Cases cited:

1. Rakesh Malhotra Vs Krishna Malhotra (2020)
Cri.L.R. SC 209

2. Palla Shanti Kiran Vs St. of A.P. (2020) 4 ALT
329

3. Sudhir Kumar Vs St. of Raj. (1996) Crl.L.R.
Raj. 315

4. Rajnesh Vs Neha CRLA No. 730 of 2020

5. Vishal Prajapati Vs Smt. Monika Prajapati Ist
Appl. No. 70 of 2020

6. Surendra Kumar Bhansali Vs The Judge
Family Court & anr. (2004) AIR Raj. 257

7. Har Charan Singh Vs Kamal Preet Kaur
(2005) 3 RCR (Civil) 808

8. Nirmal Kumar Vs St. of U.P. (2000) 41 A Cr.C.
661

9. Rohtas Singh Vs Ramendri (Smt.) & anr.
(2000) 3 SCC 180

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. This criminal revision is directed
against the judgment and order dated
4.3.2021 passed by Additional Special
Judge, Family Court, Gautam Budh Nagar
in Criminal Misc. Case No. 653 of 2013
Smt. Sneha Vs. Tarun Pandit. By the
impugned order the learned court below
has allowed the maintenance application
U/s 125 Cr.P.C. of O.P. No. 2 Smt. Sneha
Pandit and has awarded Rs. 25,000/- per
month as maintenance to her from the date
of filing of the application.

2. I n brief the facts are that O.P. No. 2
Smt. Sneha Pandit moved an application
for maintenance U/s 125 Cr.P.C. against
revisionist
Tarun
Pandit
with
the
allegations
that
her
marriage
was
1 All. Tarun Pandit Vs. State of U.P. & Anr.
573
solemnized
with
opposite
party
on
22.11.2009 and she performed her marital
obligations
after
the
marriage. After
sometime of the marriage the behaviour of
opposite party was not cordial with her and
he started to mentally and physically
torture
her.
Making
certain
other
allegations it was further stated that
opposite party has left her at her maternal
house and since 30.11.2013 she is living
with her father. The opposite party is
ignoring her and not maintaining her and is
not ready to keep her with him and has
deserted her. She has no source of income
while opposite party is Squadron Leader in
Air Force and his salary is Rs. 80,000/- per
month. On the aforesaid ground Rs.
40,000/- as maintenance allowance per
month was claimed by O.P. No. 2.

The revisionist (opposite party)
filed his reply in which he admitted the
marriage but denied rest of the allegations
and further submitted that the applicant
herself without any just cause is living
separately from her husband and it is she who
has deserted the opposite party. Revisionist
(opposite party) has also made certain
allegations against the applicant and stated
that she is responsible for the whole affairs
and she does not want to live with opposite
party. It is further alleged that applicant has
falsely shown her address of NOIDA Gautam
Budh Nagar. In fact applicant and her parents
live at house no. D-84 Saket Colony, District
Meerut and that is their permanent address.
The address mentioned in the application is
false. The applicant has filed the application
with false facts concealing the real facts and
has not come with clean hands. The learned
court below after taking evidence and hearing
arguments of the parties by the impugned
judgment and order has allowed the
application and awarded the maintenance
allowance.

3. One of the grounds on which the
impugned judgment and order has been
challenged is that the revisionist (opposite
party)
has
taken
specific
objections
regarding jurisdiction of the court at
Gautam Budh Nagar but the court below
has not recorded any finding regarding
jurisdiction of the court at Gautam Budh
Nagar. The learned counsel for the
revisionist contended that in para 11 and 12
of the objections filed by the opposite party
there are specific objections and it is
alleged that O.P. No. 2 was living with her
parents in their house at 84 D, Saket
Colony, Meerut and not at Gautam Budh
Nagar. This objection has also found
support from the order dated 29.8.2016
passed by the Additional Principal Judge,
Family Court, Meerut in proceeding U/s 24
of the Hindu Marriage Act filed by the O.P.
No. 2. The court below recorded the
specific finding that O.P. No. 2 was
residing at 84 D, Saket Colony, Meerut and
not at Gautam Budh Nagar. The said
finding has never been challenged by the
O.P. No. 2 before any higher authority and
the
same
has
attained
the
finality.
Therefore, the court at Gautam Budh Nagar
has no jurisdiction to entertain the petition
U/s 125 Cr.P.C. and the judgment and order
is without jurisdiction, illegal and deserves
to be set-aside. Learned counsel also
contended that entire criminal proceedings
were also initiated by O.P. No. 2 at Meerut
and not at Gautam Budh Nagar. This
clearly shows that O.P. No. 2 was residing
permanently at Meerut and not at Gautam
Budh Nagar but just to harass and
pressurize the revisionist and his family
members proceeding U/s 125 Cr.P.C. was
574 INDIAN LAW REPORTS ALLAHABAD SERIES
deliberately initiated at Gautam Budh
Nagar.

Learned counsel for the O.P. No. 2
submitted that a perusal of the objections
filed by the revisionist against the application
U/s 125 Cr.P.C. would reflect that no precise
objection was taken before the court below
that the application U/s 125 Cr.P.C. is not
maintainable at District Gautam Budh Nagar
as it lacks jurisdiction. In para 11 it is stated
that opposite party has deliberately filed the
application U/s 125 Cr.P.C. at District
Gautam Budh Nagar only in order to harass
the revisionist, however, in fact, she is
resident of District Meerut. Therefore, there
was no occasion for the court below to deal
with the objection of the jurisdiction before it.
Learned counsel further contended that in
para 10 of the counter affidavit the
respondent has mentioned in detail and
brought on record the material to demonstrate
that she has been residing at district Gautam
Budh Nagar. In fact, the respondent was
undergoing a course in J.P. Institute of
Information Technology at District Gautam
Budh
Nagar.
Learned
counsel
further
submitted that the finding of the trial court in
proceeding U/s 24 of the Hindu Marriage Act
dated 29.8.2016 is based on medical
certificate issued by the doctor in District
Meerut. In fact, on a visit to District Meerut
for a date in the case the respondent fell ill
and she has to consult a doctor there. On the
basis of the same the court mentioned about
her residence which is un-consequential.
There was no occasion to arrive to a
conclusion that the respondent was residing
in District Meerut and the respondent has
already brought on record a number of
documents to demonstrate otherwise.

From
the
perusal
of
the
objections of revisionist (opposite party)
filed against the application U/s 125 Cr.P.C.
it appears that there is no specific plea that
the court at Gautam Budh Nagar lacks
jurisdiction. In para 11 of objections only it
has been alleged that address mentioned in
the application is false and applicant does
not reside there. She and her parents are
permanent resident of District Meerut and
application has been moved at Gautam
Budh Nagar to harass the opposite party
and her family. It also appears that point of
jurisdiction has not been sincerely raised
before the trial court and due to this the
trial court has not dealt with it. Further an
application U/s 125 Cr.P.C. can be moved
at a place where applicant is temporarily
residing. It has been alleged in counter
affidavit that applicant is temporarily
residing at Gautam Budh Nagar and
pursuing a course in J.P. Institute of
Information Technology at Gautam Budh
Nagar. So the ground that court at Gautam
Budh Nagar lacks jurisdiction has no force.

4. Another ground on which the
impugned judgement and order has been
challenged is that Family Court, Meerut
which is the competent court in divorce
petition U/s 13 of Hindu Marriage Act has
granted divorce decree in favour of the
revisionist and has also awarded Rs. 25 lacs
as permanent alimony U/s 25 of the Hindu
Marriage Act while passing the decree of
divorce and hence, no maintenance U/s 125
Cr.P.C. can be awarded and application is
not maintainable. Learned counsel for the
revisionist vehemently contended that in
divorce petition no. 1614 of 2013 U/s 13 of
Hindu Marriage Act the competent court
has passed the divorce decree dated
21.2.2016 and while passing the decree has
also awarded permanent alimony of Rs. 25
lacs, which has duly been deposited by the
revisionist in the court on 20.3.2018. Thus,
O.P. No. 2 has Rs. 25 lacs at her disposal
and can not be said to without financial
1 All. Tarun Pandit Vs. State of U.P. & Anr.
575
resources and her condition is not of a
destitute. There is no question of non
sustenance. The court below has not
considered it. Though the appeal against
divorce decree is pending but the said order
has not been stayed. The court below lost
its sight in not considering the legal
preposition that a divorced wife can claim
maintenance U/s 25 of the Hindu Marriage
Act and not U/s 125 Cr.P.C. When a
divorce decree U/s 13 of the Hindu
Marriage Act is passed the wife of such
annulled married can claim maintenance
U/s 25 of Hindu Marriage Act. It is only
such court which passed the divorce decree
who
is
alone
competent
to
grant
maintenance U/s 25 of the Hindu Marriage
Act. Hence, the impugned order is
absolutely illegal, arbitrary and against the
said principal of law. Learned counsel
placed reliance on the following citations:

1. Rakesh Malhotra Vs. Krishna
Malhotra 2020 Cri.L.R. (SC) 209

2. Palla Shanti Kiran Vs. State of
Andhra Pradesh 2020 (4) ALT 329

3. Sudhir Kumar Vs. State of
Rajasthan 1996 Cri.L.R. (Rajasthan) 315

4. Rajnesh Vs. Neha Criminal
Appeal No. 730 of 2020

5. Vishal Prajapati Vs. Smt.
Monika Prajapati First Appeal No. 70 of
2020 decided on 30.9.2021

6. Surendra Kumar Bhansali Vs.
The Judge Family Court and another 2004
AIR (Rajasthan) 257

7. Har Charan Singh Vs. Kamal
Preet Kaur 2005 (3) RCR (Civil) 808

8. Nirmal Kumar Vs. State of
U.P. 2000 (41) A Cr.C. 661

5. Learned counsel for the O.P. No. 2
contended that respondent is entitled to
maintenance U/s 125 Cr.P.C. despite the
fact that competent court granted divorce
and has also given permanent alimony of
Rs. 25 lacs U/s 25 of the Hindu Marriage
Act because the judgment dated 21.2.2018
granting divorce has not attained finality.
Respondent has filed an appeal which is
pending and will be considered proceeding
in continuation. Further respondent has not
accepted the amount of alimony and same
is lying in the court below. There is no
occasion to accept the alimony as it would
amount to accepting the decree of divorce.
It is also contended that respondent has
never requested or filed an application U/s
25 of the Hindu Marriage Act to claim
permanent alimony and the court has
granted it on its own volition. Learned
counsel further contended that even a
divorced wife is entitled for maintenance
U/s 125 Cr.P.C. and cited Rohtas Singh
Vs. Ramendri (Smt.) and another (2000)
3 SCC 180 and Swapan Kumar Banerjee
Vs. State of West Bengal and others AIR
2019 SC 4748. Learned counsel also
contended that the case law of Palla Shanti
Kiran Vs. State of Andhra Pradesh (Supra)
and Rakesh Malhotra Vs. Kiran Malhotra
(Supra) relied on by the counsel of the
revisionist do not apply on the present case.
In case of Palla Shanti Kiran (Supra) the
marriage was declared void/annulled U/s
14 of Hindu Marriage Act and once
marriage has been declared void there was
no occasion to consider the contesting
parties to have been married at all and in
that circumstances it was held that the
applicant was not entitled for maintenance
U/s 125 Cr.P.C. as there was no husband
576 INDIAN LAW REPORTS ALLAHABAD SERIES
and wife relationship while in Rakesh
Malhotra (Supra) the wife therein had
accepted the amount of permanent alimony,
hence, it was held that she is not entitled
for
maintenance.
Learned
counsel
contended
that
in
the
present
case
respondent has never accepted the amount
of permanent alimony.

6. It is undisputed that petition U/s 13
of Hindu Marriage Act for divorce was
filed by the revisionist and it is being
contested by the O.P. No. 2. The trial court
has allowed the petition, passed the decree
of divorce and has also awarded permanent
alimony of Rs. 25 lacs. The revisionist has
deposited the amount in the court below but
the O.P. No. 2 has not accepted the decree
or permanent alimony and has filed an
appeal against it and has also not
withdrawn the amount of permanent
alimony. The amount of permanent alimony
is lying deposited with the court below. In
the case of Rakesh Malhotra (Supra) the
Hon'ble Supreme Court in para 9, 11, 16
and
17
has
made
the
following
observations:

"9. The basic issue that arises for
consideration is whether after grant of
permanent alimony under section 25 of the
Act, a prayer can be made before the
Magistrate under Section 125 of the Code
for maintenance over and above what has
been granted by the Court while exercising
power under Section 25 of the Act.

11. At the stage of passing a
decree for dissolution of marriage, the
Court thus considers not only the earning
capacity of the respective parties, the status
of the parties as well as various other
issues. The determination so made by the
Court has an element of permanency
involved in the matter. However, the
Parliament has designedly kept a window
open in the form of subsections (2) and (3)
in that, in case there be any change in
circumstances, the aggrieved party can
approach the Court under sub-section (2)
or (3) and ask for variation/modification.

16. Since the Parliament has
empowered the Court under Section 25(2)
of the Act and kept a remedy intact and
made available to the concerned party
seeking modification, the logical sequitur
would be that the remedy so prescribed
ought to be exercised rather than creating
multiple channels of remedy seeking
maintenance. One can understand the
situation where considering the exigencies
of the situation and urgency in the matter, a
wife initially prefers an application under
section 125 of the Code to secure
maintenance in order to sustain herself. In
such matters the wife would certainly be
entitled to have a full-fledged adjudication
in the form of any challenge raised before a
Competent Court either under the Act or
similar such enactments. But the reverse
cannot be the accepted norm.

17. In the circumstances, we
allow these appeals, set aside the view
taken by the High Court and direct that the
application preferred under Section 125 of
the Code shall be treated and considered as
one preferred under Section 25(2) of the
Act."

7. There is fine distinction between
the facts of the two cases. In the case of
Rakesh Malhotra it was the wife who has
filed petition of dissolution of marriage
under Section 13 of Hindu Marriage Act
and on her petition a decree was passed and
while passing the decree the court also
awarded permanent alimony, which was
accepted by the wife. While in the present
1 All. Tarun Pandit Vs. State of U.P. & Anr.
577
case divorce petition has been filed by the
husband. It is being contested by the wife
who has preferred an appeal and also has
not accepted the permanent alimony which
is lying deposited in the court below.

8. I n the case of Rajnesh Vs. Neha on
the issue of overlapping of jurisdiction in
grant of maintenance the Hon'ble Supreme
Court has held as Under:

(a)
Issue
of
overlapping
jurisdiction

To
overcome
the
issue
of
overlapping
jurisdiction,
and
avoid
conflicting orders being passed in different
proceedings, it has become necessary to
issue directions in this regard, so that there
is uniformity in the practice followed by the
Family Courts/District Courts/Magistrate
Courts throughout the country. We direct
that:

(i) where successive claims for
maintenance are made by a party under
different statutes, the Court would consider
an adjustment or set-off, of the amount
awarded in the previous proceeding/s,
while determining whether any further
amount is to be awarded in the subsequent
proceeding:

(ii) it is made mandatory for the
applicant
to
disclose
the
previous
proceeding and the orders passed therein,
in the subsequent proceeding;

(iii) if the order passed in the
previous
proceeding/s
requires
any
modification or variation, it would be
required
to
be
done
in
the
same
proceeding."

The Hon'ble Apex Court has
thus held that a wife can make a claim for
maintenance under different statutes. There
is no bar to seek maintenance both under
the protection of Women against Domestic
Violence Act, 2005 and Section 125 of the
Cr.P.C., or under Hindu Marriage Act."

9. In Vishal Prajapati Vs. Smt.
Monika Prajapati (Supra) rulings relied on
by the learned counsel for the revisionist a
Division Bench of Allahabad High Court
has
followed
the
aforesaid
principle
laiddown by Hon'ble Apex Court and has
held that the court would consider an
adjustment or set of the amount awarded in
previous proceedings.

So there is no bar to seek
maintenance both U/s 125 Cr.P.C. or Hindu
Marriage Act but the court will have to
adjust or set of the amount awarded in
previous proceedings.

10. In Surendra Kumar Bhansali Vs.
The Family Judge Court and another
(Supra) it has been held that pendency of
appeal does not preclude wife from filing
of application U/s 25 of the Hindu
Marriage Act. While in Har Charan Singh
Vs. Kamal Preet Kaur (Supra) it has been
held that court can grant maintenance and
permanent alimony to wife without specific
application. In Nirmal Kumar Vs. State of
U.P. (Supra) it has been held that recovery
of maintenance under both the sections U/s
125 Cr.P.C. and 24 of Hindu Marriage Act
shall not be allowed.

In this case the O.P. No. 2 (wife)
has
not
withdrawn
the
amount
of
permanent alimony awarded under section
25 of the Hindu Marriage Act, hence, there
578 INDIAN LAW REPORTS ALLAHABAD SERIES
is no question of any adjustment or
recovery under both the orders.

11. In Rohtash Singh Vs. Ramendri
(Supra) it has been held by the Apex Court
that :

"Claim for maintenance under
the first part of Section 125 Cr.P.C. is based
on the subsistence of marriage while claim
for maintenance of a divorced wife is based
on the foundation provided by Explanation
(b) to sub-section (1) of Section 125 Cr.P.C.
If the divorced wife is unable to maintain
herself and if she has not remarried, she
will be entitled to maintenance allowance.

A woman has two distinct rights
for maintenance. As a wife, she is entitled
to maintenance unless she suffers from any
of the disabilities indicated in Section
125(4). In another capacity, namely, as a
divorced woman, she is again entitled to
claim maintenance from the person of
whom she was once the wife. A woman
after divorce becomes a destitute. If she
cannot
maintain
herself
or
remains
unmarried, the man who was once her
husband continues to be under a statutory
duty and obligation to provide maintenance
to her."

12. Applying the aforesaid preposition
of law on the present set of facts it is clear
that as O.P. No. 2 (wife) has not accepted
the amount of alimony as she has
challenged the divorce decree in appeal and
appeal is pending and in that circumstances
she can not accept the amount of alimony.
So it can not be said that she has sufficient
financial resources as permanent alimony
has been awarded to her. At present she has
no source of income and financial support
to maintain her and comes in the category
of destitute. The learned trial court has
dealt with the aforesaid point in its
judgment and has categorically recorded
the finding that applicant (O.P. No. 2) has
no source of income and unable to maintain
herself and has awarded the maintenance
allowance. Hence, the impugned order does
not suffer from any illegality or infirmity.
There is no perversity in the impugned
order.

13. Another ground on the basis of
which the impugned order has been
challenged is that the court below has
directed the revisionist to pay maintenance
from the date of filing of application i.e.
since 30.10.2013. In doing so the court
below has completely lost its sight to the
admitted fact that O.P. No. 2 had been paid
Rs. 18,900/- as maintenance from the
salary of revisionist by his department, the
Indian
Air
Force.
Learned
counsel
contended that the court below has not
given any reason for award of maintenance
from the date of filing of application. Once
the O.P. No. 2 had been paid maintenance
@ Rs. 18,900/- per month from the salary
of revisionist up to March, 2018 there was
no justification for the court below to
award maintenance from the date of
application i.e. since 30.10.2013. Learned
counsel submitted that on this ground the
order of court below is perverse, illegal and
not sustainable.

14. This argument has also no force.
In the impugned order it is provided that if
any amount of maintenance has been paid
by the opposite party to the applicant the
same shall be adjusted and rest amount will
be paid in two months. It is undisputed that
O.P. No. 2 has been paid Rs. 18,900/- as
maintenance from the salary of revisionist
up to March, 2018. After passing of divorce
decree the revisionist has deposited the
amount of permanent alimony in the trial
1 All. Dr. Kalawati Shukla Vs. State of U.P. & Anr.
579
court and amount of maintenance which
was being paid from the salary of the
revisionist, has been stopped. The O.P. No.
2 has not withdrawn the amount of alimony
and it is lying deposited in the court below
as the O.P. No. 2 has challenged the decree
of divorce in appeal which is pending.
After
March,
2018
no
amount
of
maintenance
is
being
paid
by
the
revisionist. The trial court has already made
provision of adjustment of the amount of
maintenance earlier paid. So there is no
illegality or infirmity on this count also.

15. From the above discussion it is
clear that the impugned order does not
suffer from any infirmity or illegality. It is
also not perverse. There is no sufficient
ground to set-aside the impugned order.
The revision is liable to be dismissed.

16.

Accordingly,
the
Criminal
Revision is dismissed.
----------
(2022)01ILR A579
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1238 of 2015

Dr. Kalawati Shukla ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sheshhadri Trivedi, Sri Raj Kumar Singh

Counsel for the Opposite Parties:
G.A., Sri Aditya Kumar Yadav, Sri Vishnu Gupta,
Sri D.P. Singh

A. Criminal Law - Code of Criminal
Procedure,
1973-Sections
397/401
&
Indian Penal Code, 1860-Sections 419,
420, 504, 506-challenge to-summoning
order-revisionist committed cheating in
the garb of providing employment to
opposite party-learned Magistrate has
taken cognizance under section 190(1)(a)
by treating the application of section
156(3) Cr.P.C. as a complaint case but
thereafter
he
passed
the
order
for
investigation-Registration of F.I.R. was
not required as the Learned Magistrate
had
already
taken
cognizance
under
section
190(1)(a)
of
the
Cr.P.C.-
in
pursuance of the order of investigation
final report was submitted against which
the complainant filed protest petitionLearned court below could not have
resorted
to
both
the
provisions
simultaneously-the procedure adopted by
the court below is illegal and vitiated in
the eyes of law.(Para 1 to 9)

B. It is settled principle of law that under
section 202 Cr.P.C. the Magistrate either
himself inquire into the matter or direct
that an investigation to be made by police
or such other person he deems fit but he
cannot simultaneously proceed in both the
manners-Learned Magistrate should have
only taken into consideration the evidence
produced u/s 200 and 202 Cr.P.C. ignoring
the final report and protest petition and
then should have passed any order either
to summon the accused or dismiss the
complaint.(Para 6)

The revision is allowed. (E-6)

List of Cases cited:

1. Irshad Khan & ors Vs St. of U.P. & anr.(2013)
LawSuit (All) 3146

2. Ramprabesh Rai Vs Bishun Mandal (1981)
CrLJ 139

3. Vadilal Panchal Vs Dattatraya (1960) AIR SC 1113