Dismissed

Ravi Kumar v. State of Up Others

Allahabad HC21 Oct 2024CRLR/45/2024

Case brief

AI extract

What is this about?

The High Court of Allahabad dismissed a criminal revision challenging an order rejecting an application under Section 126(2) Cr.P.C. The petitioner alleged the lower court passed an ex-parte order despite Arably granting him notice and opportunities. The court rejected this, finding the petitioner avoided appearing after being granted chances to submit evidence. Claims regarding army leave were di

What did the court decide?

The criminal revision challenging the impugned order dated 20.11.2023 under Section 126(2) Cr.P.C. is dismissed as it lacks merit and there is no illegality or infirmity found.

Ravi Kumar vs State of Up Others — Maintenance and Alimony | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:167370

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Court No. - 87

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Case :- CRIMINAL REVISION No. - 45 of 2024

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Revisionist :- Ravi Kumar Opposite Party :- State Of Up Others Counsel for Revisionist :- Gaurav Srivastav,Rajesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Neeraj Singh Yadav

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Hon'ble Manjive Shukla,J.

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Heard Sri Gaurav Srivastava, learned counsel appearing for the revisionist, learned A.G.A. for the State and Sri Neeraj Singh Yadav, learned counsel appearing for Opposite Party No.2.

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This revision has been filed by the revisionist challenging therein the order dated 20.11.2023 passed by the Additional Principal Judge, Family Court No.1, Agra in Criminal Misc. Case No.7/2023 (Ravi Kumar Vs. Smt. Krishna Rana) whereby, application filed by the revisionist under Section 126(2) Cr.P.C. has been rejected.

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It has been contended on behalf of the revisionist that he is working in the Indian Army and at relevant point of time was posted at Laddakh. It has further been contended that since the revisionist was not granted leave for the dates fixed in the matter therefore, he could not appear before the court and also could not file evidence. The trial Court without granting adequate opportunity to the revisionist, had proceeded to decide the application filed under Section 126(2) Cr.P.C. and vide order dated 20.11.2023, same had been rejected.

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Learned counsel appearing for the revisionist has argued that it is apparent on the face of the impugned order itself that the order passed under Section 125 Cr.P.C., against the revisionist, is an exparte order as he was not granted opportunity to appear in the case and to file evidence and accordingly, it was obligatory on the Additional Principal Judge, Family Court, Agra to allow the revisionist's application filed under Section 126(2) Cr.P.C. but in utmost arbitrary manner, the said application had been rejected vide order order dated 20.11.2023.

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On the other hand, Sri Neeraj Singh Yadav, learned counsel appearing for Opposite Party No.2 has argued that the order dated 6.12.2022 is not an ex- parte order and actually, prior to passing of

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the said order, the revisionist was put to notice and he also appeared in the proceedings. It has further been argued that even during proceedings under Section 125 Cr.P.C., once the Court proceeded to decide the matter ex- parte, an application filed by the revisionist that order, to proceed ex-parte in the matter, was recalled and thereafter, the revisionist was granted opportunity to file his reply and put his defence on record but he failed to do so therefore, the Additional Principal Judge, Family Court, Agra was having no option except to decide the case, filed under Section 125 Cr.P.C., in absence of the revisionist.

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Learned counsel appearing for Opposite Party No.2 has vehementally argued that the ex-parte order is that order, which is passed without service of notice on the parties but here in the present matter, order dated 6.12.2022 cannot be said to be an exparte order as the same had been passed after putting the revisionist at notice and after his appearance in the matter.

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Learned counsel appearing for Opposite Party No.2 has lastly argued that the Additional Principal Judge, Family Court No.1, Agra, after considering the entire facts and circumstances, had passed the impugned order dated 20.11.2023 and there is neither any infirmity nor any illegality in the said order, as such the present revision filed by the revisionist is liable to be dismissed.

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I have considered the arguments advanced by the learned counsels appearing for the parties and I find that Opposite Party No.2 instituted proceedings under Section 125 Cr.P.C and the revisionist was put to notice. In response of notice, the revisionist appeared in the matter and participated in the proceedings but thereafter, he avoided to appear before the court, accordingly the court passed order on 3.09.2022 whereby matter was directed to proceed ex-parte. The revisionist filed application for recall of the order dated 3.09.2022 which was allowed and the revisionist was again granted opportunity to file his reply and to put his defence on record but he failed to do so.

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The relevant portion of the impugned order dated 20.11.2023 is extracted as under:-

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" ससुनना एववं पतनावलली कना अवललोकन ककयना गयना। तलवलीदना पतनावलली वनाद सवंख्यना -863/2020 शलीमतली ककष्णना रनाणना बननाम रकव कसुमनार अन्तगरत धनारना -125 दण्ड प्रकक्रियना सवंकहितना , थनानना - न्यय आगरना , जजिलना - आगरना कके अवललोकन सके कवकदत हिलोतना हिहै कक इस वनाद मम कवदनान पयवनारजधकनारली दनारना कदननावंक 06.12.2022 कलो कनणरय एववं आदकेश पनाररत करतके हिहए प्रनाथर / कवपकली कलो प्रनाजथरयना

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कके भरण - पलोषण हिकेतसु कसुल मसु .12000/- रुपयके प्रकतमनाहि प्रनाजथरयना / कवपककयना कलो अदना करनके हिकेतसु आदेशत ककयना गयना। मयल वनाद कके पतनावलली कके अवललोकन सके यहि स्पष्ट हिहै कक उक्त वनाद मम क एकपकलीय कनणरय पनाररत नहिहीं ककयना गयना हिहै। सवंबवंजधत पतनावलली 863/2020 कके अवललोकन सके यहि भली स्पष्ट हिलोतना हिहै कक इस वनाद मम मनाननलीय उच्च न्यनायनालय दनारना एप्ललीककेशन अवं . धनारना 482 नवंबर 5001/2022 मम पनाररत आदकेश कदननावंककत 27.04.2022 कके दनारना न्यनायनालय कलो वनाद कलो यथनाशलीघ्र 6 मनाहि कके अन्तगरत कनस्तनाररत ककयके जिनानके हिकेतसु कनदरकशत ककयना गयना हिहै। जजिस पर उभय पक कलो सनाक्ष्य कना अवसर कदयना गयना। कवपकली दनारना अवसर कदयके जिनानके कके बनावजियद भली बहिस नहिहीं ककी गयली तदलोपरनावंत कनणरय 06.12.2022 पनाररत ककयना गयना। प्रनाथर कना कथन हिहै कक वहि लदनाख मम उसककी डयटली नववंबर कदसम्बर मम थली और उसके छसुटली नहिहीं दली गयली जजिस कनारण वहि न्यनायनालय मम उपसस्थत नहिहीं हिलो सकना। ककवंतसु प्रनाथर दनारना छसुटली कके जलए आवकेदन ककयके जिनानके और उससके कनरस्तलीकरण कके सवंबवंध मम कलोई भली प्रपत प्रस्तसुत नहिहीं ककयना गयना हिहै। उक्त वनाद मम कवपकली पयवर मम भली उपसस्थत हिलोकर अनसुपसस्थत हिलो गयना थना , कवपकली ककी अनसुपसस्थकत कके कनारण मम उसकके कवरुद्ध एकपकलीय कनायरवनाहिली अग्रसनाररत ककी गयली थली ककवंतसु प्रनाथर कके आवकेदन पर न्यनायनालय दनारना एकपकलीय आदकेश कलो 03.09.2022 कलो कनरस्त कर प्रनाथर कलो अपनना पक प्रस्तसुत करनके कना अवसर कदयना गयना थना ककवंतसु कवपकली दनारना अपनके सनाक्ष्य कके स्तर पर अपनना सनाक्ष्य प्रस्तसुत नहिहीं ककयना गयना तदलोपरनावंत पतनावलली कवपकली सनाक्ष्य कना अवसर समनाप्त कर बहिस हिकेतसु कनयत ककी गयली और कवपकली कलो भली बहिस कना पयनारप्त अवसर कदयना गयना। उक्त कनणरय गसुणदलोष कके आधनार पर पनाररत ककयना गयना हिहै। अततः प्रनाथर कना आवकेदन 3 अ स्वलीकनार ककयके जिनानके कना पयनारप्त आधनार नहिहीं हिहै। अततः प्रनाथरननापत 3 अ कनरस्त कककेयके जिनानके यलोग्य हिहै। "

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This Court finds that the order dated 6.12.2022 cannot be termed as an ex- parte order, as prior to passing of this order, the revisionist was put to notice and even he appeared in the proceedings but later on, he avoided to appear in the proceedings and he also did not file objections or evidence before the court. This Court also finds that the trial court passed an order on 3.9.2022 for proceeding in the matter ex-parte, thereafter that order was recalled on the application filed by the revisionist and he was granted adequate opportunity to appear in the proceedings and put his evidence on record but it appears that he deliberately avoided to appear in the matter.

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So far as the ground taken by the revisionist, that he is working in the Indian Army and he was not granted leave for appearing on the dates fixed in the matter, is concerned, it is noteworthy that the revisionist at no point of time has filed copy of any application before the trial court to show that he applied for leave for the dates fixed in the matter and he was denied for the said leave. Once

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there is no evidence on record, that the revisionist applied for leave for appearing on the dates fixed in the matter, he cannot be allowed to raise this ground at this stage of revision.

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In view of the aforesaid reasons, I do not find any illegality or infirmity in the impugned order dated 20.11.2023.

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Accordingly, this revision lacks merit and is hereby dismissed.

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Order Date :- 21.10.2024 SFH

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Digitally signed by :- SYED FAHIM HUSAIN High Court of Judicature at Allahabad

Ravi Kumar v. State of Up Others

Case brief

What is this about?

What did the court decide?

Ravi Kumar v. State of Up Others

Case brief

What is this about?

What did the court decide?

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