D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 1 // 19 D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai .. Date of Order ::
11. h September 2013. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Mr. Prabhat Ojha, for the petitioner. Mr. Anuj Sahlot, for the non-petitioner. <><><> BY THE COURT: (per Dinesh Maheshwari, J.) Preliminary This criminal revision petition, directed against the order dated 20.01.2012, as passed by the Family Court, Udaipur on an application under Section 125 of the Code of Criminal Procedure, 1973 (‘the Code’/’Cr.P.C.’), was filed by the petitioner, and was dealt with by the office, as a matter to be laid before a Single Judge of this Court. However, this petition has been placed before the Division Bench in view of an order passed by a learned Single Judge of this Court on 17.07.2013 holding that this matter is required to be registered as “DB Petition for Family Courts and Matrimonial Matters”. Upon this matter having, thus, been placed before the Division Bench, on 27.08.2013, a co-ordinate Bench posed the obvious question to the parties “as to whether a criminal revision petition against the order of the Family Court under Section 125 Cr.P.C. would be maintainable before a Single Judge or before the Division Bench?” D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 2 // After having heard the learned counsel for the parties on the question so posed and having examined the law applicable, we are, with utmost respect, unable to endorse the views expressed by the learned Single Judge in the order dated 17.07.2013. In our view, on the existing scheme of law applicable, this matter could not have been sent to the Division Bench. Having regard to the circumstances, we feel it expedient and in the interest of justice necessary to deal with the relevant aspects of law at some length for appropriate future course in regard to this nature litigation. RELEVANT BACKGROUND ASPECTS It appears appropriate to observe at the outset that we are not making any comment on the merits of the case either way for the order proposed to be passed. Reference herein to the facts is only for a brief insight into the background in which the matter has come up before this Court. The matter arises out of an application filed by the non-petitioner-wife under Section 125 of the Code of Criminal Procedure, 1973 before the Family Court at Udaipur. The petitioner-husband contested the application, inter alia, with denial of existence and subsistence of the matrimonial relations with the applicant-wife. The applicant-wife stated herself to be a resident of Udaipur and also alleged that the marriage of the parties was solemnized in Udaipur District within the jurisdiction of the Family Court at Udaipur. By way of the application, the applicant-wife alleged that the present petitioner failed to provide her maintenance and sought the relief that the provision for her maintenance at Rs. 5,000/- per month be made. After taking D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 3 // evidence, the learned Judge, Family Court held the applicant-wife entitled to claim maintenance and found it just and proper to direct the non-applicant-husband (present petitioner) to make payment of an amount of Rs. 3,000/- per month towards her maintenance from the date of filing of the application, i.e., 21.09.2005. The petitioner-husband is aggrieved of the order so passed by the Family Court, Udaipur and hence, has filed this petition with reference to Sections 397 and 401 of the Code of Criminal Procedure, 1973 and further with reference to Section 19 (4) of the Family Courts Act, 1984 (hereinafter referred to as “the Act of 1984”/“Family Courts Act”). This petition, titled as “SB Criminal Revision under Section 397 read with Section 401 of the Code of Criminal Procedure and further read with Section 19(4) of the Family Courts Act, 1984” was dealt with by the office and registered as “S.B. Criminal Revision Petition”. On 13.03.2012, a learned Single Judge of this Court issued notice in this petition returnable in three weeks and also requisitioned the record of the Trial Court. After appearance of the parties, another learned Single Judge heard the arguments on 15.07.2013 and pronounced the order on 17.07.2013. In the order dated 17.07.2013, the learned Single Judge has observed that the orders passed by the Family Court could be challenged only by way of an appeal under Section 19(6) of the Family Courts Act; and such an appeal is to be heard by a Bench consisting of two or more Judges. With these observations, the learned Single Judge has ordered that this petition be treated as “DB Petition for Family Courts and Matrimonial Matters” and be D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 4 // placed before a Division Bench. The order dated 17.07.2013 reads as under:- “This is settled position of law that because of Section 19 (6) of the Family Court’s Act, 1984 (for short ‘the Act of 1984’ hereinafter) orders passed by the Family Court can be challenged only by way of an appeal under Section 19(6) of the Act of 1984 and such appeal has to be heard by a Bench consisting of two or more Judges. Looking to the provisions of Section 19(6) of the Act of 1984, it is hereby ordered that this S.B.Criminal Revision Petition No.177/2012 may be treated as D.B.Petition for Family Courts and Matrimonial Matters. Accordingly, the Registry is directed to remove this file from the Register of S.B.Criminal Revision Petitions and to register it as a fresh D.B.Petition for Family Courts and Matrimonial Matters and this file be put up after one week before the concerned Division Bench.” It appears from a perusal of the order dated 17.07.2013 that the learned Single Judge has proceeded on the assumption that the order passed by the Family Court could only be challenged by way of an appeal under Section 19(6) of the Act of 1984. It appears that the other provisions contained in Section 19 of the Act of 1984, particularly Sub-section (4) of Section 19, were not brought to the notice of the learned Single Judge or escaped attention. In the given circumstances, it appears expedient and apposite to refer to the statutory provisions directly applicable to the present case. APPLICABLE STATUTORY PROVISIONS A comprehension of the relevant provisions makes out that for the purpose of exercising the jurisdiction and powers conferred on a Family Court by the Act of 1984, the State Government, after consultation with the High Court and by a notification, is required to establish in the city or town with population exceeding 1 million, a Family Court. The State Government has also been given the D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 5 // powers to establish a Family Court for such other areas in the State as necessary. The State Government, after consultation with the High Court, is also to specify the local limits of the areas to which the jurisdiction of a Family Court would extend and it can, at any time, increase, reduce or alter such limits. The provisions concerning the jurisdiction of the Family Court are contained in Chapter III of the Act of 1984. Per Section 7(1) thereof, the Family Court is conferred with the jurisdiction that could be exercised by the District or any subordinate Civil Court in the suits and proceedings of the nature referred to in the Explanation, for declaratory and other reliefs qua the marriage relations and cognate or ancillary matters arising therefrom. By virtue of Sub- section (2) of Section 7, a Family Court can exercise the jurisdiction exercisable by a Magistrate of First Class under Chapter IX of the Code and such other jurisdictions, as may be conferred on it. Sub-section (2) (a) of Section 7 of the Act of 1984, being directly relevant, is reproduced as under:- “(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” Per Clause (b) of Section 8 of the Act of 1984, the jurisdiction and powers of the Magistrate under Chapter IX of the Code have been excluded in relation to an area wherefor a Family Court has been established. Section 8(b) of the Act of 1984 reads as under:- D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 6 //
“8. Exclusion of jurisdiction and pending proceedings.- Where a Family Court has been established for any area,- (a)............... (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); …….” Chapter IV of the Act of 1984 provides for the procedure in relation to the proceedings before the Family Court. Section 10 thereof, being again relevant, is reproduced hereunder for ready reference:-
“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 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.” In Chapter V of the Act of 1984, carrying Section 19, the provisions have been made for appeals and revisions. It may be noticed that earlier, the heading of the Chapter was “APPEALS”, which was substituted by the Amendment Act No. 59 of the year 1991 with the expression “APPEALS AND REVISIONS”. By the same Amendment Act No. 59 of the year 1991, relevant changes were made in the Scheme of Section 19 of the Act of 1984, particularly in regard to the proceedings under Chapter IX of the Code whereby, it was, inter alia, made clear that no appeal would lie from an order passed under Chapter IX of the Code of Criminal D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 7 // Procedure, 1973. A new provision in the form of Sub-section (4) of Section 19 was inserted and the earlier Sub-Sections (4) and (5) were re-numbered as Sub-sections (5) and (6) respectively. Section 19 of the Act of 1984 in the present form reads as under:-
“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. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 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) 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. (5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.” A comprehension of the provisions referred above makes it clear that in the scheme of the Act of 1984, exclusive jurisdiction to deal with the proceedings under Chapter IX of the Code is conferred on the Family Court in relation to the area for which it is established. Per Section 10 of the Act of 1984, in relation to such proceedings referable to Chapter IX of the Code of Criminal Procedure, 1973, the provisions of the said Code or Rules made thereunder would apply [vide Sub-section (2) of Section 10]; and after a Family Court has exercised its jurisdiction and passed an D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 8 // order under Chapter IX ibid, no appeal is maintainable against such an order by virtue of Sub-section (2) of Section 19. However, per Sub-section (4) of Section 19 of the Act of 1984, the High Court may, on its own motion or otherwise, call for and examine the record of any such proceedings in which the Family Court has passed an order under Chapter IX of the Code for the purpose of satisfying itself as to the correctness, legality or propriety of the order so passed, not being an interlocutory order; and as to regularity of such proceedings. It is at once clear that such jurisdiction under Sub-section (4) of Section 19 of the Act of 1984 is akin and essentially similar to the jurisdiction of revision, referable to Section 397 of the Code of Criminal Procedure, 1973, which reads as under:-
“397. Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” CASE LAW At this juncture, we may take note of a few of the decisions wherein, the aspects related with the powers under Section 19 of D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 9 // the Act of 1984 came up for consideration for one reason or another. In the case of Prem Singh Vs. Smt. Madhu Bala:
1995. Cr.L.R.(Raj.) 489, a learned Single Judge of this Court opined that such a revision petition ought to be filed under Sub-section (4) of Section 19 of the Act of 1984 and observed as under:-
“11. This revision has been filed under Sec. 397, Cr.P.C. while it ought to have been filed under sub-section (4) of Sec. 19 of the Family Courts Act. It is true that the present revision cannot be thrown out because of mentioning of wrong Section 397, Cr.P.C. instead of mentioning sub-section (4) of Sec. 19 of the Family Court Act. Due to oversight or for any other reason if present revision has been filed under Sec. 397, Cr.P.C., it will not affect the maintainability of the instant revision, inasmuch as the phraseology of sub-section (4) of Sec. 19 of the Family Court Act are pari materia to the phraseology used under Sec. 397, Cr.P.C.” It is noticed that in the case of Minor Anu @ Atul Vs. Ratan Lal Sharma:
1993. 2) WLC 156.decided on 26.04.1993, a Division Bench of this Court considered the question about maintainability of appeal per Sub-section (1) of Section 19 of the Act of 1984 against an order awarding interim maintenance in the proceedings under Section 125 Cr.P.C. From the report, it appears that the Hon'ble Division Bench considered the provisions of Section 19 of the Act of 1984 as they stood prior to the amendment by the Amendment Act No. 59 of the year 1991 and held the appeal to be not maintainable for having been filed against interlocutory order. Though the said decision was rendered on 26.04.1993 but it appears that the amendment of Section 19 by the Amendment Act No. 59 of the year 1991, which became made applicable from 28.12.1991, was not brought to the notice of the Court. Apart from D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 10 // the fact that in the said decision, the aspect of order awarding interim maintenance was in question, the said decision, even otherwise, cannot be said to be a binding precedent for the simple reason that a directly applicable statutory provision, i.e., the amended Section 19 of the Act of 1984 was not considered by the Court. In the case of Satya Prakash Vs. Smt. Premlata:
1996. 2) RLW 653.decided on 14.09.1995, a learned Single Judge of this Court considered a civil revision petition preferred with reference to the provisions contained in Section 115 of the Code of Civil Procedure against the order of the Family Court passed on an application under Section 24 of the Hindu Marriage Act, 1955. The learned Single Judge, of course, considered the amended Section 19 of the Act of 1984 as also the scheme of the Act of 1984 and held that when an order passed by the Family Court would give rise to an appeal under Section 19(1) of the Act of 1984, no revision under Section 19(4) would be maintainable but if the order had been passed by the Family Court in exercise of the powers under Section 7(2) of the Act of 1984 then, the right of revision under Section 19(4) would be available and not that of an appeal under Section 19(1) of the Act of 1984. The learned Single Judge, inter alia, said:- “(9).................... If the suit or case before the Family Court was of the nature detailed in explanation to Section 7(1) and in which jurisdiction was exercisable by a District Court or a subordinate Civil Court under the relevant statute or enactment, then the judgment or order passed by the Family Court would give rise to an appeal U/S 19(1) to the aggrieved party and no revision U/S 19(4) against such judgment or order would be maintainable. However, if the Family Court has passed an order in exercise of its jurisdiction U/S 7(2), then a right of revision U/S 19(4) and not of an appeal U/S 19(1) would be available to the aggrieved party.” D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 11 // We may also refer to few of the decisions of the other Hon'ble High Courts. In the case of Aruna Choudhary Vs. Sudhakar Choudhary:
2004. (2) MPLJ 101 the Hon'ble Madhya Pradesh High Court proceeded essentially to consider the questions as to whether against an order passed by the Family Court while deciding an application under Section 125 Cr.P.C., an appeal or revision under Section 19 of the Act of 1984 would be maintainable and in case, a revision would lie before the High Court, whether it would be a civil revision, criminal revision or any other revision. The Division Bench of Hon'ble Madhya Pradesh High Court held that the powers exercisable by the Family Court under Section 125 Cr.P.C. would be of civil nature and would be amenable to the revisional jurisdiction of the High Court as such. The said decision was specifically a matter of reference to the Larger Bench of the same High Court and ultimately in the case of Rajesh Shukla Vs. Meena R. Shukla & Anr. :
2005. Cri.L.J.
3800, the Larger Bench of Hon'ble Madhya Pradesh High Court held that the decision in Aruna Choudhary (supra) was not of correct proposition of law. The Larger Bench also held that the revisions arising out of applications under Section 125 of the Code shall be registered as criminal revisions and said,-
“17. Therefore, we answer the reference that since powers of Judicial Magistrate First Class have been exercised by the Family Court for deciding application under Section 125 of the Code, revision filed against the said order should be registered as Criminal Revision. Therefore, with respect to the judgment in the case of Aruna Choudhary (2004(2) MPLJ
101) (supra) we hold that correct law has not been laid down in this judgment. Revisions arising out of applications under Section 125 of the Code shall be registered as criminal revisions as they flow from the proceedings under the Code. However, it is for the High Court to frame rules for hearing of appeals and revisions D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 12 // arising out of the orders passed by the Family Court and its registration. The High Court may consider this matter on administrative side.” The Hon'ble Delhi High Court in the case of Manish Aggarwal Vs. Seema Aggarwal & Ors :
192. (2012) DLT 714.considered the scope and ambit of Section 19 of the Act of 1984 in the context of the fact that an order passed under Section 125 Cr.P.C. by the Family Court in exercise of jurisdiction to grant interim maintenance was sought to be questioned by way of an appeal before the High Court. Different provisions related with making of the provision for maintenance were considered. Thereafter, the Hon'ble Delhi High Court analysed the distinction between interlocutory order and final order and stated its conclusion as under:-
“25. We, thus, conclude as under: i. In respect of orders passed under Sections 24 to 27 of the HM Act appeals would lie under Section 19 (1) of the said Act to the Division Bench of this Court in view of the provisions of sub- section (6) of Section 19 of the said Act, such orders being in the nature of intermediate orders. It must be noted that sub-section (6) of Section 19 of the said Act is applicable only in respect of sub-section (1) and not sub-section (4) of Section 19 of the said Act. ii. No appeal would lie under Section 19 (1) of the said Act qua proceedings under Chapter 9 of the Cr.P.C. (Sections 125 to
128) in view of the mandate of sub-section (2) of Section 19 of the said Act. iii. The remedy of criminal revision would be available qua both the interim and final order under Sections 125 to 128 of the Cr.P.C. under sub-section (4) of Section 19 of the said Act. iv. As a measure of abundant caution we clarify that all orders as may be passed by the Family Court in exercise of its jurisdiction under Section 7 of the said Act, which have a character of an intermediate order, and are not merely interlocutory orders, would be amenable to the appellate jurisdiction under sub-section (1) of Section 19 of the said Act.” D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 13 // We may observe that in the said case of Manish Aggarwal, the Hon'ble Delhi High Court, on a part relating to the nature of the order, has taken a view at divergence with the view this Court in the case of Mahesh Bhardwaj Vs. Smt. Smita Bhardwaj : AIR 199.Rajasthan 47 and to that extent, the said decision cannot be considered proceeding on the applicable propositions of law for this Court. The jurisdiction to deal with this Criminal Revision Petition On a plain reading of the relevant provisions and applying the relevant principles from the decisions of this Court, there remains nothing to doubt that so far the order passed by a Family Court in any proceedings under Chapter IX of the Code of Criminal Procedure, 1973 is concerned, if the order so passed is not of interlocutory nature, the same could be taken up for revision per Sub-section (4) of Section 19 of the Act of 1984. However, there are two aspects requiring consideration: One, about the nature of the proceedings under Sub-section (2) of Section 7 and more particularly, the nature of proceedings undertaken with reference to Chapter IX of the Code; and Secondly, the nature of the petition for revision when filed against an order passed in such proceedings under Chapter IX ibid. In our view, the answers to these questions are reasonably available in the provisions dealing with the procedure, particularly Sub- section (2) of Section 10 of the Act of 1984 wherefrom it is clear and is beyond a pale of doubt that the provisions of the Code of Criminal Procedure, 1973 or the Rules made thereunder, apply to D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 14 // the proceedings under Chapter IX of that Code before a Family Court. The proceedings of Section 125 Cr.P.C., even if encompassing some aspects of civil nature rights too, cannot be treated to be the proceedings of civil nature merely because the Family Court is deemed to be a civil court for the purpose of Sub- section (1) of Section 10 of the Act of 1984. The said provision of Sub-section (1) of Section 10 specifically relates to the proceedings other than those under Chapter IX of the Code of Criminal Procedure. Therefore, the Family Court cannot be deemed to be a civil court for the purpose of proceedings under Chapter IX of the Code of Criminal Procedure. Then, for all the provisions of the Code of Criminal Procedure, 1973 being applicable to the proceedings under Chapter IX before a Family Court, it follows as a necessary corollary that if a revision petition against an order passed in the proceedings under Chapter IX of the Code is to be maintained, it would, in essence, be with reference to Section 397 thereof. This aspect has been taken care of by the Legislature with insertion of Sub-section (4) to Section 19 of the Act of 1984 carrying the provisions pari materia to Section 397 Cr.P.C. In the scheme of the applicable enactments, i.e., the Code of Criminal Procedure, 1973 as also the Family Courts Act, 1984 and the nature of the proceedings, we have no doubt that the revision petition to be filed under Section 19(4) of the Act of 1984 is, for all practical purposes, a criminal revision petition. Now coming to the core question as to whether this nature criminal revision petition is to be heard by a Judge sitting alone or by a Bench consisting of two or more Judges, it is at once clear D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 15 // that the observations made in the order dated 17.07.2013 are not correct where the learned Single Judge has proceeded as if all the matters, wherein the orders of the Family Court are sought to be challenged in this Court, are required to be laid before a Division Bench by virtue of Sub-section (6) of Section 19. A look at Sub- section (6) of Section 19 of the Act of 1984 makes it clear that the said provision relates only to the appeal preferred under Sub- section (1) of Section 19 of the Act of 1984 and, obviously, does not relate to a revision petition preferred under Sub-section (4) of Section 19 of the Act of 1984. Moreover, for the question as to whether any matter is fit to be laid before a Judge sitting alone or before a Bench consisting of two or more Judges, the relevant provisions contained in Chapter V of the Rules of High Court of Judicature for Rajasthan, 1952 (‘ the Rules of 1952’) are required to be kept in view. Under Rule 55 thereof, specific class of case(s) have been delineated which shall ordinarily be admitted, heard and disposed of by a Judge sitting alone with further provision for the order by Hon'ble the Chief Justice for hearing of any case or class of cases by a Bench of two or more Judges. Rule 55 of the Rules of 1952 reads as under:-
“55. Jurisdiction of a single Judge. - Except as provided by these Rules or other law, the following cases shall ordinarily be admitted, heard and disposed of by a Judge sitting alone, namely; (i) a motion for the admission of a memorandum of appeal or cross-objection or an application for exparte interim order; (ii) a civil appeal; (iii) an execution appeal; (iv) a civil revision; (v) a Suit or proceeding in the nature of a suit coming before the Court in the exercise of its original or extraordinary civil, testamentary or matrimonial jurisdiction including a proceeding under The Indian Trusts Act, 1882 (Act No. II of D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 16 // 1882), The Companies Act, 1956 (Act No. I of 1956), The Designs Act, 1911 (Act No. II of 1911) or The Patents Act, 1970 (Act No. 39 of 1970); (vi) a reference under section 243 of the Rajasthan Tenancy Act,1955 (Act No. III of 1955); (vii) a case or proceeding under section 30 of the Rajasthan High Court Ordinance, 1949 (Ordinance No. XV of 1949); (viii) a criminal appeal, application or reference under the Code of Criminal Procedure, 1973 or any other law except an appeal,application or reference in a case in which a sentence of death or imprisonment for life has been passed and in criminal matters against acquittal arising out of offences punishable only with death or imprisonment for life; (ix) a case coming before the Court in the exercise of its ordinary or extra-ordinary original criminal jurisdiction (deleted Semicolon) except the application for releasing the accused on parole in pending Division Bench appeals. (x) an appeal or revision from an order passed under sections 340, 341 and 343 of the Code of Criminal Procedure, 1973; (xi) the writ petitions under Article 226 and 227 of the Constitution of India, except; (a) the Writ Petitions challenging the vires of the provisions of any Act ; (b) writ petitions filed by Judicial Officers relating to their services; (c) Civil writ Petitions arising out of and relating to Central Excise and Salt Act, 1944 and Customs Act, 1962; (d) Challenging the decisions of any Tribunal Constituted under Article 323-A and 323-B of the Constitution of India. (xii) an application under Article 228 of the Constitution of India and the case withdrawn under the said Article : Provided that - (a) the Chief Justice may, from time to time direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges; (b) a Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting alone on any question or questions of law arising therein for decision to a Bench of two Judges; and (c) a Judge before whom any proceedings under The Indian Trusts Act, 1882 (Act No. II of 1882), The Companies Act, 1956 (Act No. I of 1956), The Designs Act, 1911 (Act No. II of 1911) or the Patents Act, 1970 (Act No. 39 of 1970) is pending, may with the sanction of the Chief Justice, obtain the assistance of one or more other Judges for the hearing and determination of such proceedings or of any question or questions arising therein.” While omitting other Rules dealing with different issues and different class of cases, we may take note of Rule 61 of the Rules of 1952 which reads as under:- D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 17 //
“61. Cases to be heard by two Judges.- Save as otherwise provided by these Rules or other law or by any general or special order of the Chief Justice every other case shall be heard and disposed of by a Bench of two Judges, provided that, on any day when there is only one Judge sitting on the Bench either at Jodhpur or Jaipur, such Judge may exercise jurisdiction which may be exercised by a vacation Judge during the vacation.” We may point out that looking to the scheme of the Rules of 1952, before passing the order, we had requested the Deputy Registrar (Judicial) to make a report as to whether any general or special order of the Hon'ble the Chief Justice for assignment of such nature cases has been issued? As per the report of the Deputy Registrar (Judicial), made after enquiry from the Registrar General and the Administrative Officer Judicial (Stamp Reporter Section), no general or special order of Hon'ble the Chief Justice for assignment of case filed against the order of the Family Court under Section 125 Cr.P.C. seems to have been issued. Be that as it may. A look at the provisions aforesaid makes it clear that per Clause (viii) of Rule 55 of the Rules of 1952, a criminal appeal, application or reference, except that relating to a case in which sentence of death or imprisonment for life has been awarded and in criminal matter against acquittal arising out of offences punishable only with death or imprisonment for life, is ordinarily to be admitted, heard and disposed of by a Judge sitting alone. There might appear a bit of doubt that the specific expression “Revision” has not been used in the said clause though it has been used in relation to the civil matter as also for an order passed under Sections 340, 341 and 343 of Code of Criminal D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 18 // Procedure [vide Clause (iv) and (x) respectively]. However, this doubt need not detain us for long for the simple reason that the expression “Application” in clause (viii) appears to be having co- relation with the expression as employed in Section 397 of the Code of Criminal Procedure, 1973. In particular, Sub-section (3) of Section 397 of the Code refers to the invocation of such powers or revision by way of “Application”. In essence, it appears that the expression “Application”, as occurring in Clause (viii) of Rule 55 of the Rules of 1952, is in reference to, and for the purpose of, a prayer for revision per Section 397 Cr.P.C. No other provision in the Rules is to be found by which, such proceedings for revision of an order passed by the Family Court in a proceedings under Chapter IX of the Code of Criminal Procedure can be referred to. Moreover, in Clause (viii) of Rule 55, reference is to the criminal appeal or application not only under Section 397 Cr.P.C. but also under “any other law” too. Therefore, we have no hesitation in holding that the prayer for revision of an order passed by the Family Court in the proceedings under Chapter IX of the Code are those of criminal revision; and are referable to Clause (viii) of Rule 55 of the Rules of 1952. As noticed, an appeal under Section 19(1) of the Act of 1984 is, by virtue of the statutory requirement, to be heard by a Bench of two or more Judges and hence, such appeals are usually laid before a Bench comprising of two Judges of this Court. However, the Legislature in its wisdom has chosen not to make a similar provision in relation to a revision petition referable to Sub-section (4) of Section 19 of the Act of 1984. The said D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 19 // omission cannot be ignored as insignificant. It is clear that in the scheme of the Act of 1984, as amended by the Amendment Act No. 59 of the year 1991, it was never the intention of the Legislature that a petition seeking revision of an order passed in the proceedings under Chapter IX of the Code of Criminal Procedure be also heard by a Bench of two or more Judges. Obviously, then, assignment of such a case would depend on the applicable rules of the concerned High Court. So far this Court is concerned, as noticed above, this revision petition is clearly covered under Clause (viii) of Rule 55 of the Rules of 1952 and, therefore, the directions issued by the learned Single Judge in the order dated 17.07.2013, to place the matter before a Division Bench, with great respect, cannot be considered standing in conformity with the applicable provisions of law. For what has been observed and discussed hereinabove, we are of the view that in the position of the Rules as standing, this petition cannot be said to be a matter fit to be laid before a Bench of two or more Judges. Jurisdiction to deal with this matter essentially remains with a Judge of this Court sitting alone. However, as noticed, in the scheme of the Rules of 1952, Hon'ble the Chief Justice may, from time to time, direct any case or class of cases, which is ordinarily to be heard by a Judge sitting alone, to be heard by a Bench of two or more Judges. The power of the Chief Justice to issue general or special orders is also seen in Rule 61 of the Rules of 1952. D.B. CRIMINAL REVISION PETITION NO. 177/2012. Lalit Shanker Vs. Smt. Sunder Bai // 20 // Thus, after having stated our opinion, of course, at variance with what has been observed by the learned Single Judge in the order dated 17.07.2013, we are of the view that for appropriate assignment and other appropriate orders, this matter ought to be placed before Hon'ble the Chief Justice. Ordered accordingly. (BANWARI LAL SHARMA), J.
(DINESH MAHESHWARI), J.
/Mohan/