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Dr. Dilip Kumar @ Dr. Dilip Kumar … vs State Of Bihar & Anr on 22 November, 2018

Patna High Court Cr.M isc. No.6740 of 2016 (03) 1

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.6740 of 2016

1. DR. DILIP KUMAR @ DR. DILIP KUMAR SHARMA @ DILIP
SHARMA, S/o Late Shiv Pujan Prasad r/o Keshopur Grudwara Road P.S.
Jamalpur, District Munger.

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Swati Omi, wife of Dr. Dilip Kumar Sharma @ Dr. Dilip Kumar of
Chhoti Kelawari Anand Lane P.S. – Kotwali, District – Munger.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Dhirendra Nath Jha-Advocate
For the Opposite Party/s : Dr. Ravindra Kumar-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

03 22-11-2018 Heard learned counsel for the petitioner, learned

counsel for the Opposite Party No.2 as well as learned Additional

Public Prosecutor.

2. Instant petition has been filed purported to be

under Section 482 of the Cr.P.C. against an order dated

03.12.2015 passed by the Principle Judge, Family Court, Munger

in Maintenance Case No.153 of 2014, whereby and whereunder

the learned Principle Judge, Family Court has directed the

petitioner/ husband to pay Rs.15,000/- per month as an ad interim

maintenance to the Opposite Party No.2/ applicant/ wife as well as

children. The learned Principle Judge also directed to pay

Rs.10,000/- as lump sum as cost in filing of the petition as well as
Patna High Court Cr.M isc. No.6740 of 2016 (03) 2

Rs.1,000/- per date, the recurring cost of litigation.

3. In the background of matrimonial disharmony,

Opposite Party No.2/ applicant/ wife while filed maintenance case

putting an allegation of harassment, cruelty, which ultimately

resulted in kicking her out from her matrimonial home with

children and having no source of income has asked for

maintenance.

4. Petitioner/ Opposite Party controverted the

allegation by way of show-cause and submitted that as the

applicant/ opposite party no.2, herself was not inclined to stay at

her matrimonial home, hence she is not entitled to claim the same.

Furthermore, on account of voluntary relinquishment whereunder,

without any rhyme and reason, forbidden the petitioner/ opposite

party to discharge his matrimonial obligation, did not justify the

prayer. Apart from this, it has also been pleaded that the wife

happens to be Homeopathic doctor and from her practice, earns

Rs.40,000/- per month. She also earns additional sum of

Rs.10,000/- from painting. To justify the same, corresponding

activities having at the end of wife that is payment of E.M.I.

against loan having borrowed by opposite party no.2/ applicant,

payment of premium against insurance policy have also been

averred and on the basis thereof, asked for dismissal of the
Patna High Court Cr.M isc. No.6740 of 2016 (03) 3

petition.

5. During midst of proceeding, a prayer has been

made on behalf of wife for grant of ad interim maintenance to her

along with her children, cost of litigation, whereupon objection

was filed and after hearing both side, allowed the prayer by the

order impugned, subject matter of instant petition.

6. In order to justify the legality of the instant

petition, it has been submitted that after having been conclusively

held that the order having been passed relating to grant of ad

interim maintenance is an interlocutory order, on account thereof,

is not at all revisable and that being so, the order is to be subject to

adjudication under Section 482 of the Cr.P.C. attracting inherent

jurisdiction of the High Court, whereupon petition is maintainable.

7. While learned counsel for the opposite party no.2

has submitted that as per decision of the Division Bench in Md.

Akil Ahmad vs. the State of Bihar and another reported in

2016(4) P.L.J.R. 968, it has been held that the order relating to ad

interim maintenance is not at all challengeable under Section 482

of the Cr.P.C. rather it is to be under Article 227 of the

Constitution of India and that being so, instant petition is legally

not maintainable and is fit to be dismissed. The learned Additional
Patna High Court Cr.M isc. No.6740 of 2016 (03) 4

Public Prosecutor endorsed the submission.

8. Maintenance, as provided under Section 125 of the

Cr.P.C. and the procedure prescribed there for, adjudicatory

power, proper identification of the revisional Court has been,

before introduction of Family Courts Act was to be guided in

accordance with Criminal Procedure Code. After introduction of

Family Courts Act, in order to give speedy remedy to the

delinquent, the matter has been entrusted to the Family Court and

the proper identification of the powers, procedure, is to be

identified so prescribed therein. After going through the Family

Courts Act, it is evident that on one stretch, the Court has to

exercise its power as a District Judge, while dealing with the

issues covering under Section 7(1) of the Act. Simultaneously, the

Court has to discharge the power of the Judicial Magistrate, 1st

Class while dealing with the maintenance cases in terms of

Chapter-IX of the Criminal Procedure Code as incorporated under

Section 7(2) of the Act. That means to say, there happens to be

proper demarcation in between, with regard to proper recognition

of the identity of the Court coupled with the power exercisable

corresponding thereto. For proper appreciation of the same,

Section 7 of the Family Courts Act is quoted below:-

“7. Jurisdiction.-

Patna High Court Cr.M isc. No.6740 of 2016 (03) 5

(1) Subject to the other provisions of this Act, a Family

Court shall- -(1) Subject to the other provisions of this

Act, a Family Court shall-”

(a) have and exercise all the jurisdiction exercisable by

any district court or any subordinate civil court under

any law for the time being in force in respect of suits

and proceedings of the nature referred to in the

explanation; and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district court or, as

the case may be, such subordinate civil court for the

area to which the jurisdiction of the Family Court

extends. Explanation.-The suits and proceedings

referred to in this sub-section are suits and

proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a

marriage for a decree of nullity of marriage (declaring

the marriage to be null and void or, as the case may

be, annulling the marriage) or restitution of conjugal

rights or judicial separation or dissolution of

marriage;

(b) a suit or proceeding for a declaration as to the

validity of a marriage or as to the matrimonial status

of any person;

(c) a suit or proceeding between the parties to a

marriage with respect to the property of the parties or
Patna High Court Cr.M isc. No.6740 of 2016 (03) 6

of either of them;

(d) a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship

of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family

Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of the

First Class under Chapter IX (relating to order for

maintenance of wife, children and parents) of the Code

of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by

any other enactment.”

9. Section 8 excludes the jurisdiction whenever there

happens to be establishment of Family Court and further, all the

cases pending before the Competent Court either in terms of

Section 7(1) of the Family Courts Act or Section 7(2) of the

Family Courts Act are to be transferred before the Family Court

and in likewise manner, institution of the case, henceforth. Section

20 of the Family Courts Act requires proper attention at the

present juncture itself, which gives overriding effect, whenever

there happens to be inconsistency with the other Act. For proper
Patna High Court Cr.M isc. No.6740 of 2016 (03) 7

appreciation, the same is quoted below:-

“20. Act to have overriding effect.-The provisions of

this Act shall have effect notwithstanding anything

inconsistent therewith contained in any other law for

the time being in force or in any instrument having

effect by virtue of any law other than this Act. -The

provisions of this Act shall have effect notwithstanding

anything inconsistent therewith contained in any other

law for the time being in force or in any instrument

having effect by virtue of any law other than this Act.”

10. Stepping forward, one another section relevant for

the present purpose, has also to be taken note of. Section 10 of the

Family Courts Act prescribes procedure to be followed during

course of conduction of trial, bifurcating the same in terms of

Section 7(1) (2) of the Act, respectively, the same is quoted

below:-

“10. Procedure generally.-

(1) Subject to the other provisions of this Act and the

rules, the provisions of the Code of Civil Procedure,

1908 (5 of 1908) and of any other law for the time

being in force shall apply to the suits and proceedings

[other than the proceedings under Chapter IX of the

Code of Criminal Procedure, 1973 (2 of 1974)] before

a Family Court and for the purposes of the said
Patna High Court Cr.M isc. No.6740 of 2016 (03) 8

provisions of the Code, a Family Court shall be

deemed to be a civil court and shall have all the

powers of such court. -(1) Subject to the other

provisions of this Act and the rules, the provisions of

the Code of Civil Procedure, 1908 (5 of 1908) and of

any other law for the time being in force shall apply to

the suits and proceedings [other than the proceedings

under Chapter IX of the Code of Criminal Procedure,

1973 (2 of 1974)] before a Family Court and for the

purposes of the said provisions of the Code, a Family

Court shall be deemed to be a civil court and shall

have all the powers of such court.”

(2) Subject to the other provisions of this Act and the

rules, the provisions of the Code of Criminal

Procedure, 1973 (2 of 1974) or the rules made

thereunder, shall apply to the proceedings under

Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall

prevent a Family Court from laying down its own

procedure with a view to arrive at a settlement in

respect of the subject-matter of the suit or proceedings

or at the truth of the facts alleged by the one party and

denied by the other.”

11. After going through Section 10 of the Act, it is

evident that applicability of C.P.C. where the dispute relates with

concerning Section 7(1) of the Act, and in likewise manner,
Patna High Court Cr.M isc. No.6740 of 2016 (03) 9

applicability of Cr.P.C. In case, dispute relates with Section 7(2)

of the Act, has been duly acknowledged. That means to say, the

procedure so prescribed there for is to be followed in order to

achieve the object of the Act with certain exceptions by way of

presence of Sections 13, 14, 15 and 16.

12. Now, the another important Section identifying

the proper forum where the order is to be challenged is Section 19.

For better appreciation, Section 19 of the Family Courts Act is

quoted below:-

“19. Appeal.-

(1) Save as provided in sub-section (2) and

notwithstanding anything contained in the Code of

Civil Procedure, 1908 (5 of 1908) or in the Code of

Criminal Procedure, 1973 (2 of 1974) or in any other

law, an appeal shall lie from every judgment or order,

not being an interlocutory order, of a Family Court to

the High Court both on facts and on law. -(1) Save as

provided in sub-section (2) and notwithstanding

anything contained in the Code of Civil Procedure,

1908 (5 of 1908) or in the Code of Criminal

Procedure, 1973 (2 of 1974) or in any other law, an

appeal shall lie from every judgment or order, not

being an interlocutory order, of a Family Court to the

High Court both on facts and on law.”

Patna High Court Cr.M isc. No.6740 of 2016 (03) 10

(2) No appeal shall lie from a decree or order passed

by the Family Court with the consent of the parties

1[or from an order passed under Chapter IX of the

Code of Criminal Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to

any appeal pending before a High Court or any order

passed under Chapter IX of the Code of Criminal

Procedure 1973 (2 of 1974) before the commencement

of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred

within a period of thirty days from the date of the

judgment or order of a Family Court.

4[(4) The High Court may, of its own motion or

otherwise, call for and examine the record of any

proceeding in which the Family Court situate within its

jurisdiction passed an order under Chapter IX of the

Code of Criminal Procedure, 1973 (2 of 1974) for the

purpose of satisfying itself as to the correctness,

legality or propriety of the order, not being an

interlocutory order, and, as to the regularity of such

proceeding.]”

4[(5)] Except as aforesaid, no appeal or revision shall

lie to any court from any judgment, order or decree of

a Family Court.

4[(6)] An appeal preferred under sub-section (1) shall

be heard by a Bench consisting of two or more
Patna High Court Cr.M isc. No.6740 of 2016 (03) 11

Judges.”

13. Even after cursory perusal of Section 19, it is

evident that the constitution of forum has properly been identified

in consonance with the jurisdiction of the Family Court as

engrafted under Section 7 of the Act. That means to say, while

exercising power adopting procedure under Section 7(1) of the

Act, if any order is being passed, the same happens to be

appealable one and in likewise manner, while discharging its

function as a Magistrate while dealing with issue falling under

Chapter-IX of the Cr.P.C., though the order became revisable.

The only criteria for invoking the jurisdiction, happens to be the

order should be an interlocutory in nature.

14. So, as is evident with regard to judgment or order

having the colour of finality, is found appealable or revisable as

the case may be, and further, as per Section 19(1) of the Act, there

happens to be no provision prescribed for adjudication of an

interlocutory matter, on account thereof, the controversy rest upon

proper identification of the forum. So far present controversy is

concerned, it happens to be with regard to grant of ad interim

maintenance under Section 125 Cr.P.C., admittedly an

interlocutory order.

15. After delving into the matter, it is evident that
Patna High Court Cr.M isc. No.6740 of 2016 (03) 12

Section 8 of the Family Courts Act does permit pendency of case

before the Court irrespective of its nature either in terms of

Section 7(1) or 7(2) of the Family Courts Act. Furthermore, it is

also evident that there happens to be proper identification of

nature of cases falling under two different categories, the first one

as detailed under Section 7(1) and second one under Section 7(2)

of the Family Courts Act. Furthermore, as is evident from Section

19 of the Act, two independent forums have been prescribed,

respectively, in order to challenge the finding of the Family Court,

with a barrier that it should not be an interlocutory in nature. And

that happens to be reason behind that an order, while discharging

its function in terms of Section 7(1) of the Act has been made

appealable while an order while discharging its function as

criminal Court in accordance with Section 7(2) of the Family

Court Act has been made revisable. But those privilege are to be

availed only when the judgment or order, whichever may be

satisfies the ingredients of finality.

16. Prescription of different forum in order to

challenge the conclusive finding corresponding to Section 7(1),

7(2) of the Family Courts Act under Section 19 of the Family

Courts Act, is found properly enlightened, so far proper

identification of nomenclature of petition is concerned and in likewise
Patna High Court Cr.M isc. No.6740 of 2016 (03) 13

manner, specifically lay down the procedure covering the sailing

thereof. Apart from this, when the same is considered with the

parallel scrutiny of Section 10 of the Act, whereunder the

procedure laid down to be properly guided by the Code

(irrespective of Civil Procedure Code or Criminal Procedure

Code) with a rigor where the same is found inconsistent with the

procedure so prescribed under the Family Courts Act. The latter

will prevail. That means to say, the area covered by the Family

Courts Act, is the area properly demarcated and only to that

extent, there would not be applicability of the Code.

17. In S.A.L. Narayan Row and another vs.

Ishwarlal Bhagwandas and another reported in A.I.R. 1965 SC

1818, it has been held by the Constitution Bench as follows:-

“The expression “civil or criminal, and such a

proceeding includes a revenue proceeding. The

expression “civil proceeding” is not defined in the

Constitution, nor in the General Clauses Act. The

expression our judgment covers all proceedings in

which a party assets the existence of a civil right

conferred by the civil law or by statue, and claims

relief for breach thereof. A criminal proceeding on the

other hand is ordinarily one in which if carried to its

conclusion it may result in the imposition of sentences
Patna High Court Cr.M isc. No.6740 of 2016 (03) 14

such as death, imprisonment, fine or forfeiture of

property. It also includes proceedings in which in the

larger interest of the State, orders to prevent

apprehended breach of the peace, orders to bind down

persons who are a danger to the maintenance of peace

and order, or orders aimed at preventing vagrancy are

contemplated to be passed.”

18. In Peter P.O. vs. Sara reported in A.I.R. 2007

Kerala 81, Full Bench has held:-

“3. At the outset, it has to be noted that the issue

considered by the learned Single Judge in

Kunjimohammed’s case (supra) had been considered

by the Full Bench in Sathyabhama’s case (supra) and it

has been held by the Full Bench that,

“There is a specific deeming provision which

states that while exercising the jurisdiction under

Section 7(1), the Family Court shall be deemed to be a

District Court or as the case may be a Subordinate

Civil Court depending upon the nature of the suits or

proceedings before it. There is also further deeming

provision in Section 10(1) which states that while

exercising jurisdiction under Section 7(1) Family

Court shall be deemed to be a ‘Civil Court’ for the

purpose of the provision of the Code and shall have all

the powers of such court. The restricted deeming
Patna High Court Cr.M isc. No.6740 of 2016 (03) 15

provision in our view would clearly indicate that

Family Court can be deemed to be a Civil Court only

while exercising the jurisdiction conferred on it under

Section 7(1) and disposing of suits or proceedings

enumerated in the Explanation to Section 7(1), in

accordance with the provision in the CPC. As a

corollary we think, it must follow that while exercising

jurisdiction under Section 7(2)(a) in accordance with

the provisions of the C.P.C. Family Court cannot be

deemed or treated as a Civil Court.”

Section 7(2)(a) of the Family Courts Act

provides for the exercise of jurisdiction by the Family

Court, of a Magistrate of the First Class under Chapter

IX of the Cr.P.C, relating to maintenance. The

provision reads as follows:

(7) jurisdiction- (2) Subject to the other

provisions of this Act, a Family Court shall also have

and exercise-

(a) the jurisdiction exercisable by a Magistrate

of the first class under Chapter IX (relating to order

for maintenance of wife, children and parents) of the

Code of Criminal Procedure, 1973 (2 of 1974).”

Thus, it is patently clear that

Kunjimohammed’s case (supra) is an erroneous

decision, rendered per incuriam and hence a precedent
Patna High Court Cr.M isc. No.6740 of 2016 (03) 16

sub silentio. The same is not the law, in view of the Full

Bench decision referred to above. Having come across

such a decision, we overrule the decision of the learned

Single Judge in Kunhimohammed v. Nafeesa . The

proceedings for maintenance before the Family Court

under Section 7(2)(a) of the Act is criminal in nature,

as held by the Full Bench in Sathyabhama’s case (1997

Cri LJ 4306) (supra).”

19. In The Newabganj Sugar Mills Co. Ltd. and

others vs. the Union of India and others reported in A.I.R. 1976

SC 1152, it has been held:-

“The inherent power has its root in necessity

and its breadth is coextensive with the necessity though

cautioning in the very next line that certainly we

cannot go against any statutory prescription.”

20. In Municipal Corporation of Delhi vs. Ram

Kishan Rohtagi and others reported in A.I.R. 1983 SC 67, it has

been held:-

“6. It may be noticed that Section 482 of the present

Code is the ad verbatim copy of Section 561A of the

old Code. This provision confers a separate and

independent power on the High Court alone to pass

orders ex debito justitiae in cases where grave and

substantial injustice has been done or where the
Patna High Court Cr.M isc. No.6740 of 2016 (03) 17

process of the Court has been seriously abused. It is

not merely a revisional power meant to be exercised

against the orders passed by subordinate courts. It was

under this section that in the old Code, the High Courts

used to quash the proceedings or expunge uncalled for

remarks against witnesses or other persons or

subordinate courts. Thus, the scope, ambit and range

of s. 561A (which is now s. 482) is quite different from

the powers conferred by the present Code under the

provisions of s. 397. It may be that in some cases there

may be overlapping but such cases would be few and

far between. It is well settled that the inherent powers

under s. 482 of the present Code can be exercised only

when no other remedy is available to the litigant and

not where a specific remedy is provided by the statute.

Further, the power being an extraordinary one, it has

to be exercised sparingly. If these considerations are

kept in mind, there will be no inconsistency between

sections 482 and 397(2) of the present Code.”

21. The matter has been subject to consideration

before the Division Bench in a case of Sita Devi v. the State of

Bihar and another reported in 2012 CRI.L.J. 2942, wherein

question arose with regard to limitation in filing of Criminal

Revision in the background on controversy so canvassed that as

per Sub-section 3 of Section 19, the appeal was to be preferred
Patna High Court Cr.M isc. No.6740 of 2016 (03) 18

within 30 days, while no limitation has been prescribed for filing

Criminal Revision and further, having absence in Sub-section 4 of

Section 19 of the Family Courts Act with regard to applicability of

procedure so prescribed under the Code regarding Criminal

Revision, Article 131 of the Limitation Act would not apply. The

Division Bench had occasion to see and analyze Section 29(2) of

the Limitation Act guiding the presence of Special Act and had

discussed the same in following way:-

“10. The rule embodied under Section 29(2) of the

Limitation Act is what is commonly knows as

“generalia specialibus non derogant”-general must

give way to special. What Section 29(2) of the

Limitation Act provides is that where there is a special

provision in any law then that would prevail over the

provisions of the Limitation Act. Thus, where the

legislature wanted to reduce the period available for

filing the appeal which, as noticed above, would be 90

days to the High Court, they accordingly in the Family

Courts Act provided that the appeal to the High Court

would be filed within 30 days in terms of Section 19(3)

of the Act. So far as Section 19(4) is concerned the

legislature while conferring Criminal Revision

Jurisdiction on the High Court did not intend to

provide for any change. Therefore, no period is

separately specified and hence the provision of the
Patna High Court Cr.M isc. No.6740 of 2016 (03) 19

Limitation Act would govern and that being so in terms

of Article 131 it would be 90 days.

11. It is then argue that Article 131 of the Limitation

Act applies to revision under Code of Criminal

Procedure and not revision as contemplated under

Section 19 (4) of the Family Court Act. In our view this

submission is not correct. As pointed out above, a

reference to Section 10(2) of the Family Court Act

would show that the legislature had provided that

subject to the provisions of the family Court Act, the

provisions of the Code of Criminal Procedure would

apply to all proceedings under Chapter-IX of the Code

of Criminal Procedure Chapter-IX inter-alia contains

Sections 125 and 127. If that were so and left

untouched then, by virtue of Section 397 of the Code of

Criminal Procedure an order passed by the Family

Judge under Section 125 or for that matter 127 Cr.P.C.

would become revisable by the High Court and the

Sessions Judge. The legislature obviously did not want

this because the Principal Judge, Family Court is of

the level of District Sessions Judge himself.

Therefore, to eliminate the powers of the Sessions

Court from Section 397 of the Cr.P.C. it became

necessary to provide for the revisional power under the

Family Court Act itself. The power that is being

exercised under Section 19(4) by the High Court is
Patna High Court Cr.M isc. No.6740 of 2016 (03) 20

nothing but the power of revision under Section 397

read with Section 401 of the Code of Criminal

Procedure. The only difference is that the power

conferred on the Sessions Judge under 397 is excluded.

Thus, what is exercised under Section 19(4) of the

Family Court Act is the power of the High Court of

superintendence as contained under Section 397 read

with Section 401 of the Code of Criminal Procedure

and it is because of that Article 131 of the Limitation

Act would apply to such revisions and not Article 137

of the Limitation Act.

12. Thus, in our view, the answer to the first question

as referred to would be that the period of limitation for

filing revision in terms of Section 19(4) of the Family

Court Act would be 90 days as prescribed under

Article 131 of the Limitation Act and to the second

question the answer would be that Section 10(2) and

Section 19(4) of the Family Court Act are

complementary provisions, which in effect only

restricts the powers of the Sessions Court to exercise

Criminal Revisional Jurisdictions, otherwise the

jurisdiction and the power exercised by the High Court

under Section 19(4) by virtue of Section 10(2) would be

of Section 397 read with Section 401 of the Code of

Criminal Procedure, which is nothing but a power of a

superintendence.

Patna High Court Cr.M isc. No.6740 of 2016 (03) 21

22. In Misc. Appeal No.70 of 2016 (Sweta Singh vs.

Sri Birendra Kumar), the Division Bench had occasion to

adjudicate upon whether procedure so prescribed under C.P.C.

would be applicable where a matrimonial suit has been dismissed

in default. The question so formulated by the Division Bench was,

” Now, it has to be seen as to whether the provision under Order 9

or Section 151 C.P.C. are in conflict with the aforesaid provision

of the Act or not ?”. And after making elaborate discussion taking

into account, Section 10 of the Family Courts Act, it has been

concluded:-

“The aforesaid provision clearly lays down that

provisions of Code of Civil Procedure, 1908 and any

other law for the time being in force shall apply to the

suits and proceedings save and except the proceedings

under Chapter IX of the Code of Criminal Procedure,

1973. Therefore, since there is no provision for

restoration of the case under the Act or the relevant

rules, v.i.z. Family Courts (Patna High Court) Rules,

2000 and the Bihar Family Court Rules, 2011, which

has simply been dismissed for default, in our view, the

power of restoration of the case or power of setting

aside the ex parte decree would always be available to

the Family Courts under the provisions contained in

C.P.C. as the same would have its root under Section
Patna High Court Cr.M isc. No.6740 of 2016 (03) 22

10 of the Act itself. On consideration of all the aspects

of the matter, one would have to come to irresistible

conclusion that in the matters regarding which there is

no provision under the Family Courts Act or Rules, the

procedure available under the CPC, for example with

respect to the present case the provisions under Order

9 Rule 8 or Section 151 of the CPC, would be

applicable. A reference in this regard is made to a

decision of learned Single Judge of Karnatka High

Court in Eknath Vs. Rupa [C 2015(0) Supreme (KAR)

605] as well as a decision of the Division Bench in

Smt. Roopa V. Santosh Kumar [AIR 2005 Allahabad

172]. Both the High Courts have taken an identical

view in the matter to the views of this Court expressed

above.”

23. In Md. Akil Ahmad vs. the State of Bihar and

another reported in 2016(4) P.L.J.R. 968, wherein, it has been

observed that order granting ad interim maintenance is amenable

under Article 227 of the Constitution of India, but no finding has

been given over applicability of Section 482 Cr.P.C., though

impliedly jurisdiction has been de-recognized. Furthermore, as it

appears the earlier Division Bench decision were not at all cited.

As such, there happens to be conflict of view, whereupon needs

reconsideration.

Patna High Court Cr.M isc. No.6740 of 2016 (03) 23

24. In Asian Resurfacing of Road Agency Pvt. Ltd.

Anr. Vs. Central Bureau of Investigation reported in 2018(2)

P.L.J.R. 329 (SC), it has been held:-

“20. It was observed that power under Section 482

Cr.P.C. could be exercised only in rarest of rare cases and

not otherwise. In Shalini Shyam Shetty vs. Rajendra

Shankar Patil (2010) 8 SCC 329:

38. The Criminal Procedure Code is undoubtedly a

complete code in itself. As has already been discussed by

us, the discretionary jurisdiction under Section 397(2)

CrPC is to be exercised only in respect of final orders and

intermediate orders. The power under Section 482 CrPC

is to be exercised only in respect of interlocutory orders to

give effect to an order passed under the Criminal

Procedure Code or to prevent abuse of the process of any

court or otherwise to serve the ends of justice. As

indicated above, this power has to be exercised only in the

rarest of rare cases and not otherwise. If that is the

position, and we are of the view that it is so, resort to

Articles 226 and 227 of the Constitution would be

permissible perhaps only in the most extraordinary case.

To invoke the constitutional jurisdiction of the High Court

when the Criminal Procedure Code restricts it in the

interest of a fair and expeditious trial for the benefit of the

accused person, we find it difficult to accept the

proposition that since Articles 226 and 227 of the
Patna High Court Cr.M isc. No.6740 of 2016 (03) 24

Constitution are available to an accused person, these

provisions should be resorted to in cases that are not the

rarest of rare but for trifling issues.

……………………………………………….

23. We may also refer to the observations of the

Constitution Bench in Ratilal Bhanji Mithani versus Asstt.

Collector of Customs, Bombay and Anr. (1967)3 SCR 926

about the nature of inherent power of the High Court:

“The inherent powers of the High Court preserved

by Section 561-A of the Code of Criminal Procedure are

thus vested in it by “law” within the meaning of Art. 21.

The procedure for invoking the inherent powers is

regulated by rules framed by the High Court. The power to

make such rules is conferred on the High Court by the

Constitution. The rules previously in force were contained

in force by Article 372 of the Constitution.”

24. As rightly noted in the impugned judgment, a Bench of

seven Judges in L. Chandra Kumar (supra) held that

power of the High Court to exercise jurisdiction under

Article 227 was part of the basic structure of the

Constitution.

25. Thus, even though in dealing with different situations,

seemingly conflicting observations may have been made

while holding that the order framing charge was

interlocutory order and was not liable to be interfered

with under Section 397(2) or even under Section 482
Patna High Court Cr.M isc. No.6740 of 2016 (03) 25

Cr.P.C., the principle laid down in Madhu Limaye (supra)

still holds the field. Order framing charge may not be held

to be purely a interlocutory order and can in a given

situation be interfered with under Section 397(2) Cr.P.C.

or 482 Cr.P.C. or Article 227 of the Constitution which is

a constitutional provision but the power of the High Court

to interfere with an order framing charge and to grant

stay is to be exercised only in an exceptional situation.

26. We have thus no hesitation in concluding that the

High Court has jurisdiction in appropriate case to

consider the challenge against an order framing charge

and also to grant stay but how such power is to be

exercised and when stay ought to be granted needs to be

considered further.”

25. In the aforesaid background, the judgment

reported in 2016(4) P.L.J.R. 968, needs reconsideration by the

Division Bench, whereupon office is directed to place before the

Hon’ble the Chief Justice for constitution of the same.

(Aditya Kumar Trivedi, J)
Vikash/-

U T

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