High Court

Legal Reasoning

902-cwp-463-2024.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 463 OF 2024Zuber Shaikh SaeedVERSUSNaziya Shaikh Zuber And Another...Advocate for the Petitioner : Mr. Deshpande Gaurav L.… CORAM : S.G. MEHARE, J. DATED : JUNE 27, 2024PER COURT:-1.Heard learned counsel for the petitioner.2.Actually the matter was posted for return of notice ofrespondent nos.1 and 2. Instead of waiting for it, the counsel for thepetitioner started arguing the matter, contending that the distresswarrant had been issued. He was arguing , as if, the distress warrantissued against the petitioner is going to be executed today. Counselfor the petitioner has no instructions about the action taken againstthe petitioner for distress warrant. The order dated 30.04.2024 was tore-issue the distress warrant against the non-applicant as prayed. Thatindicates that the earlier distress warrant was not served.3.The bone of contention of the petitioner is that thepetitioner has sought a review of the order, which is a proceduralreview and not a substantive review. He would submit that the Court 902-cwp-463-2024.odt(2)passed the impugned order without hearing him. He would rely onthe case of Ganesh Patel Vs. Umakant Rajoria, 2022 LiveLaw (SC)283. The learned Trial Court had passed the order below Exhibit-4. Ithas been observed in para 26 of the order that the interimmaintenance would be continued till disposal of the case, and she isfree to exercise the legal remedy. It was contended that as per theconclusion recorded in para 25 in Criminal Misc. Application No.161of 2018 that she has not recovered the maintenance of Rs.3,000/- permonth which was granted after the judgment because she wouldrecover the maintenance as per the order of the Family Court. Shewould execute only the order granting rent in that proceeding. Sheprayed to pass the order that she is entitled to recover themaintenance as observed in para 26 from 08.02.2019 till disposal ofthe matter. The Court heard the applicant and passed the order thatthe rights were given to the petitioner in para 25 of the order inCriminal Misc. Application No.161/2018 to recover Rs.3,000/- permonth. However, maintenance could be recovered either from theJudicial Magistrate or from the Family Court. It has been observed inpara 26 that the petitioner would be entitled to recover the interimmaintenance granted as per the order dated 08.02.2019. It was finallyobserved that the petitioner in that application was entitled to recoverthe interim maintenance from 08.02.2019 till 23.02.2022. 902-cwp-463-2024.odt(3)4.The present petitioner sought the review of the aboveorder. The bone of contention of the petitioner is that he is not liableto pay the said amount. The said order is passed without issuingnotice. Therefore, that order should be recalled/reviewed.5.After hearing the respective parties, the Court observedthat the applicants/respondents herein had filed two simultaneousapplications for grant of maintenance i.e. one under Section 125 ofthe Code of Criminal Procedure before the Hon’ble Family Court andone under Section 12 of Protection of Women from Domestic ViolenceAct before this Court. The judgment in the case filed under Section 12of D.V. Act was passed on 23.02.2022, and in the case filed underSection 125 of Cr. P.C. was passed on 27.05.2019. It seems that bothapplications were filed on the same date i.e. 06.02.2018. In theDomestic Violence Act proceeding, applicants had filed an interimmaintenance application under Section 23 of the said Act, andaccordingly, interim maintenance was granted. In the finding ofjudgment passed in the proceeding filed under Section 125 of theCr.P.C., the Hon’ble Family Court permitted adjustment of interimmaintenance amount awarded under Section 23 of the D.V. Act andheld that amount awarded in the proceeding under D.V. Act as interimmaintenance shall be adjustable against the amount awarded in theproceeding filed under Section 125 of the Cr.P.C. and the respondentis not liable to pay maintenance over and above Rs.3,000/- per month 902-cwp-463-2024.odt(4)each. That finding was considered by my learned predecessor whilepassing judgment in the proceeding filed under Section 12 of the D.V.Act i.e. Cri. M.A. No.161/2018. Thereafter, applicants filed presentapplication (main application) for recovery of arrears of interimmaintenance awarded under Section 23 of the D.V. Act. After filing ofthe application for recovery of arrears, applicants filed an applicationat Exh.4 and sought clarification whether or not, applicants areentitled to recover arrears of interim maintenance amount. Finally, itwas observed that the Criminal Court has no power to review/recall.The respondent failed to show under which provisions of law thisapplication is maintainable. Under these premises, the application hasbeen rejected.6. The question is whether the criminal Court has the powerto review the order. In the case of Ganesh Patel (Supra), the Hon’bleSupreme Court referred to Section 362 of the Cr.P.C. and observedthat the application for recall of the order is maintainable when it isan application seeking procedural review and not a substantivereview. 7.Section 362 permits the criminal Court to correct theclerical or arithmetical errors in the judgment once it is pronouncedand signed. It is not the case that some clerical or arithmeticalcorrections were allowed by the learned Magistrate. There appears tobe no substance in the submissions of the learned counsel for the 902-cwp-463-2024.odt(5)petitioner that the substantial rights of the parties have not beendecided. However, in the application, he would contend that theimpugned order is illegal and without following any provisions ofCr.P.C. The main contention of the petitioner is that he is not liable topay the interim maintenance granted to the respondent under Section23 of the D.V. Act, which is an interim maintenance. That order isexecutable. 8.In view of the above discussion, this Court is of the viewthat the submissions of the learned counsel for the petitioner thatsince the impugned order is procedural, is liable to be reviewed, isincorrect. It is a substantive order passed by the Judicial Magistrate. Ifthe Magistrate errs in passing any order, the legal remedy is availableto the petitioner. It seems that the petitioner has not been correctlyadvised, and he has been directly shown the doors of the High Courtat higher expense. This is unjustifiable. Everyone has to care that thelitigant should get justice at his doorstep at the cheapest expense. Bethat as it may, the Court did not find substance in the petition. Theimpugned order is legally correct and proper. However, the remedy isavailable against the impugned order. Since the counsel for thepetitioner started arguing the matter as observed above, the matterwas heard without waiting for the appearance of the respondents anddecided at the threshold. 902-cwp-463-2024.odt(6)9. For the above reasons, the petition stands dismissed,keeping the remedy available under the open provisions of law. (S.G. MEHARE, J.)Mujaheed//