Dilip B. Bhosale - (1.) The order of reference dated 2nd August, 2016, which has occasioned the constitution of this larger Bench, was passed by one of us (Rajan Roy, J.) in the instant Criminal Revision in view of the divergence of opinion/views expressed by coordinate Benches of this Court on the question, whether a revision against the order passed in appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act, 2005') is maintainable The questions referred to this Bench read thus: "(i) whether a revision under Section 397/401 of the Code of Criminal Procedure, 1973 is maintainable before the High Court challenging an order passed by the Court of Sessions under Section 29 of the Act 2005 (ii) whether the decisions in the case of Nishant Krishna Yadav (Criminal Revision No.4016 of 2015) and Manju Shree Robinson and Ors. v. State of U P and Ors. (Writ Petition No.7926 (MS) of 2015) lay down the law correctly on the question of maintainability of a Revision under Section 397/401 of the Code of Criminal Procedure before the High Court against an order passed by the Court of Sessions under Section 29 of the Act 2005 in view of the earlier decisions of the Supreme Court in the case of Thakur Das v. State of Madhya Pradesh and Anr., (1978) 1 SCC 27 ; National Sewing Thread Co. Ltd., Chidambaram v. James Chadwaick and Bros., AIR 1953 SC 357 ; Maharashtra State Financial Corporation v. Jayee Drugs & Pharm, (1991) 2 SCC 637 ; and ITI Ltd. v. Siemens Public Communications Networks Ltd., 2003(1) R.C.R.(Civil) 745 : (2002) 5 SCC 510 -
(2.) The factual matrix, that occasioned the reference, to the extent that is necessary, is as under: 2.1 A Criminal Revision, bearing No. 582 of 2016, by one Dinesh Kumar Yadav against the State of Uttar Pradesh & Anr. was filed under Section 397/401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') assailing an order dated 08.04.2016 passed by the Additional Sessions Judge, Pratapgarh in Criminal Appeal No. 66 of 2015 filed by husband under Section 29 of the Act, 2005. The appeal was preferred against the order dated 15.07.2015 passed by learned Magistrate under Section 20 (3) of the Act, 2005, granting an interim maintenance of Rs. 2,000/- to the wife. 2.2 In the course of hearing of the revision, an objection was raised by learned Government Advocate, as to the maintainability of the revision. While dealing with the objection, learned Single Judge noticed the conflicting judgments rendered by different coordinate Benches on the question, including the judgments in Nishant Krishna Yadav (supra) and Manju Sree Robinson (supra), referred to in the second question. It appears that the judgments, holding that a revision under Sections 397/401 of Cr.P.C. against the order in appeal under Section 29 of the Act, 2005 is not maintainable, were mainly based on the observations made by the Supreme Court in Shalu Ojha v. Prashant Ojha, 2014(4) R.C.R.(Criminal) 265 : 2014(4) R.C.R.(Civil) 815 : 2014(4) Recent Apex Judgments (R.A.J.) 335 : (2015) 2 SCC 99 . It was further noticed that in Chiranjeev Kumar Arya v. State of Uttar Pradesh & Anr. (Criminal Revision No.879 of 2015) and Prabhu Nath Tiwari & Anr. v. State of Uttar Pradesh and Anr. (Criminal Misc. Writ Petition No.15337 of 2012) , learned Single Judges, while dealing with the question, held that a revision would be maintainable before the High Court against an order passed in appeal under Section 29 of the Act, 2005. While expressing such a view, it was observed that the provisions of the Act, 2005 do not exclude the applicability of the provisions of Cr.P.C. It was further observed that in Shalu Ojha (supra), the question, which has been referred to this Bench, did not directly fall for consideration of the Supreme Court and, therefore, the decision therein does not pose a hurdle in answering the question referred in the affirmative.
(3.) Before we proceed further, it would be relevant to observe that though objection was raised on behalf of the State as to the maintainability of the revision, while placing written propositions of law before us, the State has taken a stand that a revision is maintainable.;