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) 6of 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) 8provisions 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) 11Judges.”
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) 14such 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) 15provision 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) 16sub 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) 17process 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) 19Limitation 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) 20nothing 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) 2210 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) 24Constitution 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) 25Cr.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