The court rejected an application under Section 482 Cr.P.C. to quash an order in a DV Act maintenance appeal, holding that the remedy was not maintainable because a specific revision under Section 397/401 Cr.P.C. was available as an alternative remedy.
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Court No. - 72
Case :- APPLICATION U/S 482 No. - 26026 of 2019
Applicant :- Rinku Paswan And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sandeep Kumar,Jitendra Kumar Upadhyay
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Heard Sri Sandeep Kumar, learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the impugned order dated 4.5.2019 passed by District and Sessions Judge, Fast Track Court No. 2, Ghazipur in Criminal Appeal No. 04 of 2019 (Rinku Paswan and other Vs. State of U.P. and another), whereby the appeal filed by the applicants was dismissed affirming the order dated 5.1.2019 passed by Additional Chief Judicial Magistrate, Ghazipur in Case No. 32 of 2017, whereby the applicants were directed to pay maintenance to the extent of Rs. 8,000/- per month to opposite party no.2 in a proceeding under Section 12 of The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Act).
Preliminary objection has been raised by learned AGA that present application under Section 482 Cr.P.C. is not maintainable and the remedy is available to the applicants to file revision under Section 397/401 Cr.P.C. In support of his contention, he has placed reliance upon Full Bench decision of this Court in the case of Dinesh Kumar Yadav Vs. State of U.P. and another 2016 11 ADJ 29, in which it was held that against the appellate order passed under Section 29 of the Act, revision under Section 397/401 is maintainable before the High Court.
Learned counsel for the applicants submits that there is no specific bar in challenging the order in Application under Section 482 Cr.P.C. and in the Full Bench's judgment of this Court, it is nowhere stated that application under Section 482 Cr.P.C. is not maintainable, in which it was held that revision against the appellate order is maintainable.
The arguments so raised by learned counsel for the applicants is totally misconceived.
It is well settled that if an alternative remedy is available to the
applicant by way of filing revision, then extraordinary jurisdiction of the Court under Section 482 Cr.P.C. cannot be invoked.
In view of the above, the preliminary objection so raised by learned AGA is sustained.
Accordingly, the application is rejected as not maintainable on the ground of availability of alternative remedy to the applicants.
Let the certified copy of the impugned orders be returned to learned counsel for the applicants within a week after retaining xerox copy on record.
Order Date :- 9.7.2019 Noman
2 issues framed by the court
Whether an application under Section 482 Cr.P.C. is maintainable when a specific remedy of revision under Section 397/401 Cr.P.C. is available.
Whether the extraordinary jurisdiction under Section 482 Cr.P.C. can be invoked if an alternative remedy exists.
Colour shows how this judgement treated each authority
Dinesh Kumar Yadav Vs. State of U.P. and anotherReferred¶8
Dinesh Kumar Yadav Vs. State of U.P. and another 2016 11 ADJ 29
2 provisions across 1 enactments
Rinku Paswan and 2 Others
State of U.P.
Rajiv Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
