Court No. - 64
Case :- APPLICATION U/S 482 No. - 16365 of 2019 Applicant :- Shaukat Ali Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the order dated 14.3.2019 passed by learned Additional Chief Judicial Magistrate Court No.5, Allahabad in Case No. 892 of 2014 (Smt. Momina Beguma Versus Shaukat Ali and others), under Section 31 of the Protection of Women from Domestic Violence Act, 2005, (for short Act, 2005) Police Station - Jhoonsi, District - Allahabad and remand the case to the trial court to consider the execution proceedings in accordance with law.
Challenge in the instant application is made to the order passed by the court below on 14.3.2019, under Section - 31 of the Act, 2005 and claim has been raised that it is a penal clause and it is not meant for enforcing the right and for availing that right, the appropriate application can be moved only under Section- 28 of the Act, 2005, whereas a special procedure has been prescribed for imposing penalty under Section- 31 of the Act, 2005 and the Magistrate concerned has acted illegally and has not heeded to the procedure prescribed under Section 31 of the Act, 2005 and straightway he ordered under Section - 31 of the Act, 2005.
However, it has been claimed that being aggrieved by the interim maintenance order, the applicant has already moved an appeal as prescribed under Section- 29 of the Act, 2005 and that appeal is pending. The learned counsel was quizzed time and again whether any interim order has been passed in that appeal, whereupon the learned counsel has expressed his inability to inform about any such order being passed.
However, in support of his claim learned counsel has placed reliance on the order dated 10.2.2012 passed by coordinate Bench of this Court in Criminal Revision No. 635 of 2011 and Criminal Misc. Writ Petition No. 17658 of 2010 (Manoj Anand versus State of U.P. and Another) and claimed that similar facts were involved in this case.
Also heard the learned A.G.A.
In view of the submission so raised and in view of the provisions contained under Sections- 31 and 28 of the Act, 2005, obviously the court concerned at the first instance was required to ask for proper application moved under proper section and it should have ensured as to what stage would it be legal to proceed with the application and then should have passed any order.
No doubt, the appeal is pending and the applicant has an equally better forum as the appropriate remedy is available before the appellate court itself. In order to secure ends of justice it may be observed that the applicant can be heard by the appellate court and hearing on application as such cannot be denied. The applicant is at liberty to agitate his claim before the appellate court by moving appropriate application.
Consequentially the operation of the impugned order dated 14.3.2019 shall be treated to be kept in abeyance till consideration of the application (in reference) and order passed thereon and that order alone would decide fate of order dated 14.3.2019 and the court below is required to act in accordance with such order and it may also ask the applicant to correct the array of opposite party no.2- Smt. Momina Begum to present her application under Section 28 of the Act and not under Section - 31, after hearing the applicant either personally or through counsel, as the case may be.
In the event any such application challenging the interim relief has been disposed of by the lower appellate court, then this exercise as directed above may be dispensed with.
Insofar as the aforesaid citation is concerned, the same may be urged by the applicant before the lower appellate court. At this juncture, no observation need be made.
With the aforesaid observation, this application stands disposed of.
Order Date :- 25.4.2019 S Rawat