Adeep Mathur Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

By means of present revision under Section 438/442 BNSS, the revisionist has challenged the order dated 24.02.2025 passed by District and Sessions Judge, Court No. 18, Lucknow in Criminal Appeal No. 25/2024 (Adeep Mathur Vs. State of U.P. an another), thereby dismissing the appeal preferred by the revisionist upholding the validity of the order dated 12.01.2024 passed by Additional Chief Judicial Magistrate (C.B.I.) (A.P.) Lucknow.

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It has been submitted by learned counsel for the revisionist that the opposite party no.2 is a legally married wife of the revisionist and they were married according to Hindu Rites and Ritual on 4.1.2022. Out of the said wedlock they have one son.

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It has further been stated that opposite party no.2 had filed a complaint under Section 12 of the Domestic Violence Act before the Additional Chief Judicial Magistrate, Lucknow, wherein by means of an interim order dated 2.3.2013 the revisionist was directed to pay Euros 800/- per month to the opposite party no.2.

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It has further been state that opposite party no.2 did not appear in the said proceedings and accordingly by means of order dated 1.11.2021 the same was dismissed under Section 256 Cr.P.C. After recording the fact that the complainant is not appearing for last many days and the file is listed for evidence

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but the complainant did not appear for her cross examination.

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Subsequently on coming to know of the order dated 1.11.2021 the opposite party no.2 had moved an application for condonation of delay and also for recall of the order dated 1.11.2021. The revisionist had also filed his objections to the application for recall and by means of a detail order dated 12.1.2024 the court had allowed the application for condonation of delay and recalled its order dated 1.11.2021 and restored the said proceedings.

¶15

The revisionist being aggrieved by the order dated 12.1.2024 passed by the Additional Chief Judicial Magistrate, Lucknow had preferred an appeal before the Additional District & Sessions Judge, Lucknow, which was registered as Criminal Appeal No. 25 of 2024 and was dismissed on 24.2.2025, against which present revision has been filed.

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It has been submitted that there was unexplained delay of 634 days even for recall of the order and the opposite party no.2 did not explain long delay and consequently both the courts below have erred in allowing the application for recall. He further submits that for once an order has been passed under Section 256 of the Cr.P.C., there is no provision for recall and accordingly both the orders are without jurisdiction.

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Learned AGA on the other hand has opposed the revision but did not dispute the aforesaid facts.

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Considered the rival submissions a question before this Court as to whether the proceedings under Section 12 of Domestic Violence Act which has previously been dismissed under Section 256 of the Cr.P.C. for non appearance of the complainant could be restored. It is noticed that initially the order under Section 256 of the Cr.P.C. passed on 1.11.2021 and subsequently application for recall was filed by the complainant. In the said application it was stated that the complainant had initially appeared regularly before the trial court but subsequently on set of the Covid 19 Pandemic she could not appear before the court and subsequently she was not a knowledge of the date fixed by the trial court and hence did not appear.

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It has further been stated that even Supreme Court had condoned the delay in all proceedings during the Covid 19 Pandemic and accordingly the period covered by the

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judgement of the Supreme Court deserves to be condoned. She had clearly indicated in her application that her non appearance before the trial court was bonafide and not intentional and beyond the control and therefore prayed for condonation of the same and for recall of the order passed under Section 256 Cr.P.C. The trial court by means of the order dated 12.1.2024 duly considered in details the grounds taken by the opposite party no.2 and also considered the objections filed by the revisionist. It was noticed that the objections filed by the revisionist are in fact only technical objections and the court was fully satisfied with regard to the ground taken for condonation of delay with regard to non appearance of opposite party no.2 in application under Section 12 of Domestic Violence Act and consequently condoned the delay and recalled its order dated 1.11.2021.

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The appellate court also did not find any infirmity in the order of the trial court dated 12.1.2024 and consequently rejected the appeal. It was further noticed that the complainant was living in United Arab Emirates at the relevant time and therefore her counsel could not ever inform her about the date of listing, due to which could not appear and relying on Supreme Court judgment in Balakrishnan Vs. M. Krishmurti (1998)7 SCC 123, the Court found sufficient ground was made out and consequently rejected the appeal.

¶22

To consider the submission of the revisionist it is necessary to notice that as per Section 28 of Protection of Women from Domestic Violence Act, 2005, provides as under:-

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" 28. Procedure.—(1) Save as otherwise provided in this Act, all proceedings under sections 12,18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23 ." 14. Accordingly the proceedings under D.V. Act would be covered by the Cr.P.C. 1973 but the proviso further provides that the court can lay its own procedure for disposal of application under Section 12 or under Section (2) of Section 23 of the Domestic Violence Act.

¶24

Accordingly I do not find any infirmity that the application for recall was duly entertained and the court was duly satisfied with regard to the reasons stated in the application for condonation of delay. This Court has also examined the

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impugned judgement and found that the opposite party no.2 has duly explained the reasons for non-appearance before the trial court. It is during the Covid 19 Pandemic that she could not appear and subsequently she was living in United Arab Emirates the counsel could not inform the date fixed at trial court and could not appear and accordingly has found it a fit case for condoning the delay.

¶26

On the examination of the said grievance I do not find any infirmity in the satisfaction recorded by the trial court and there was sufficient material before him to condone the said delay. I also do not find any merits on the argument of the revisionist and there is no provision under Section 256 of the Cr.P.C. for recall of an order where proceeding has been dismissed for want of appearance of the complainant.

¶27

It is noticed that sufficient discretion and power has been vested in the Judicial Magistrate who is seized of the proceedings under Section 12 of the Domestic Violence Act 2005. Even if no specific provision has been provided for recall of an order in the interest of justice he can invoke clause (2) of Section 28 of the Domestic Violence Act to entertain such application and finding satisfaction with the application for condonation of delay and had recalled the order which has been passed for dismissing the proceedings for non-appearance of the complainant.

¶28

The Protection of Women From Domestic Violence Act, is a socially beneficial legislation to aid the women who are subject of domestic violence and consequently the provisions has to be liberally constitute and no such interpretation can be taken which limits the operation of beneficial provisions to non-suit the persons who are victim of the domestic violence.

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Accordingly, I do not find any infirmity either in the orders passed by the trial court or in the appellate court. The revision is devoid of merits and is accordingly dismissed .

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(Alok Mathur, J.)

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Order Date :- 9.5.2025 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Adeep Mathur v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Adeep Mathur v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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