Rajeev Kumar Shukla v. Smt. Sheela), under Section
Case Details
Neutral Citation No. - 2023:AHC:187580 Court No. - 86 Case :- APPLICATION U/S 482 No. - 34851 of 2023 Applicant :- Rajeev Kumar Shukla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajiv Gupta,J.
Legal Reasoning
1. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 2. The instant application under Section 482 Cr.P.C. has been filed with a prayer to quash the order dated 04.08.2023 passed by Principal Judge, Family Court, Kannauj in Misc. Case No. 75/11 of 2022 (Rajeev Kumar Shukla Vs. Smt. Sheela), under Section 126(2) CrPC, Police Station Chhibramau, District Kannauj, as well as to direct the Principal Judge, Family Court, Kannauj to recall the order dated 02.04.2022 passed in Maintenance Case No. 673/12 of 2016 (Smt. Sheela Vs. Rajeev Kumar Shukla), under Section 125 CrPC, Police Station Chhibramau, District Kannauj. 3. Brief facts giving rise to this application are that opposite party no.2 is the wife of applicant and she had filed an application dated 09.11.2016 under Section 125 CrPC for grant of maintenance to her. On the basis of the said application, Maintenance Case No. 673/12 of 2016 was instituted and notices were issued to the applicant-husband. On service of the said notice, the applicant appeared before the court below and submitted his written statement on 27.02.2018. 4. After filing of written statement, the matter was sent to the Mediation Centre, District Court, Kannauj, in order to enable the parties to explore the possibility of settling the dispute through mediation, however, despite all efforts, the mediation failed. 5. It appears that subsequently, the case was fixed for adducing evidence and opposite party no.2 was examined as PW-1 and his brother Rahul Kumar Tiwari was examined as PW-2 and thereafter, the case was fixed for cross- examination, however, the applicant did not appear before the court below despite repeated adjournments and as such ultimately, vide order dated 25.03.2022, opportunity of cross- examination the witnesses was closed and the case was fixed for adducing evidence by the applicant, however, neither applicant appeared before the court below nor adduced his evidence and as such, vide order dated 28.03.2022, opportunity to adduce his evidence was also closed and the case was fixed for hearing, however, the applicant did not appear during the course of hearing and as such, the application for grant of maintenance under Section 125 CrPC was allowed vide order dated 02.04.2022 and the applicant was directed to pay a sum of Rs.7,000/- per month to opposite party no.2 with effect from date of filing the application under Section 125 CrPC i.e. 09.11.2016. 6. The applicant neither challenged the said order nor appeared before the court and as such, the said order became final. Consequently, opposite party no.2 filed an Execution Case No. 346/12 of 2022 for enforcement of maintenance allowance under Section 125 CrPC. On the basis of the said application, a recovery warrant for recovery of an amount of Rs.4,62,000/- was issued against the applicant. Consequent to the said order, the applicant appeared before the court below and filed an application dated 19.09.2022 with the prayer that since the order dated 02.04.2022 has been passed without hearing him, as such, the said order be recalled. 7. The aforesaid application was heard by the court below and after hearing the parties, the court below rejected the said application vide impugned order dated 04.08.2023 by holding that since the impugned order dated 02.04.2022 has been passed on merits and as such, there is no jurisdiction to recall the said order and accordingly, dismissed the said application vide order dated 04.08.2023. 8. Being aggrieved and dissatisfied by the said order, the present application under Section 482 CrPC has been filed. 9. Learned counsel for the applicant has only submitted that the dispute between the parties is of purely personal/ private nature and as such, the matter be referred to the Mediation Centre of this Court in order to enable the parties to explore the possibility of settling the dispute through mediation and except the said arguments, no further submission has been made by learned counsel for the applicant. 10. Per contra, learned AGA has vehemently opposed the said prayer and has supported the impugned order and has submitted that though the dispute is personal/ private in nature, yet the opposite party no.2 can not be compelled to settle the dispute through mediation. 11. Learned AGA has further submitted that even before the court below, an effort was made to get the dispute settled through mediation, for which, the matter was referred to the Mediation Centre, however, despite all efforts, the mediation failed and the dispute between the parties could not be amicably settled and as such, the court below proceeded with the case and heard the matter on merits and on failure of the applicant to appear before the court below to raise his arguments, the present case has been decided by the court below, which order do not suffer from any illegality nor has been challenged by the applicant and as such, the same has become final. 12. Learned AGA has further submitted that as per the provisions of Criminal Procedure Code, there is no provision for recalling the impugned order dated 02.04.2022, particularly, when the said order has been passed on merits after giving opportunity of hearing to the applicant, who failed to appear and submit his arguments. 13. Moreover, recalling of the said order, which was passed on merits, is barred by Section 362 CrPC and as such, the prayer for recalling the order dated 02.04.2022 has rightly been turned down by the court below, which order does not suffer from any illegality, impropriety or jurisdictional error and as such, the same is liable to be affirmed. 14. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the entire material on record, it is evident that opposite party no.2 can not be compelled to settle the dispute through mediation, which once already has failed during the course of proceedings before the court below and therefore, the prayer made by learned counsel for the applicant to refer the matter for mediation, is wholly inconceivable and therefore, is liable to be turned down. 15. Furthermore, under the Criminal Procedure Code, there is no provision for recalling the order dated 02.04.2022, which apparently has been passed on merits and is barred by Section 362 CrPC and therefore, the impugned order dated 04.08.2023 passed by the court below is just, proper and legal and do not call for any interference at this stage. 16. It is further germane to point out here that the applicant has not challenged the order dated 02.04.2022 on merits, which has become final and only after issuing recovery warrant for recovery of an amount of Rs.4,62,000/- against the applicant, the present application for recalling the order dated 02.04.2022 has been filed. 17. Admittedly, the applicant had not paid a single penny to the opposite party no.2 till date, who is leading life of a destitute and is running pillar to post for making both ends meet, as such, in the aforesaid facts and circumstances of the case, the impugned order dated 04.08.2023 passed by the court below is just, proper and legal and do not call for any interference at this stage. 18. The present application under Section 482 CrPC is devoid of merit and is accordingly dismissed. Order Date :- 27.9.2023 Nadim Digitally signed by :- NADIM ALAM High Court of Judicature at Allahabad