VIJAY KUMAR VERMA, J. - (1.) HEARD Sri S.K. Mishra Advocate appearing for the applicant and learned AGA for the State.
(2.) BY means of this application under Section 482 of the Code of Criminal Procedure (in short "the Cr.P.C."), order dated 14.5.2009 passed by Additional Sessions Judge, Court No. 6, Azamgarh in Criminal Revision No. 102 of 2009 (Rambali Rajbhar v. State of U.P.) has been challenged. By the impugned order, the revision has been dismissed. From the record, it transpires that Family Court Azamgarh passed an order on 2.3.2009, in execution case No. 180 of 2006 (Smt. Nisha v. Virendra @ Rajendra), under Section 128, Cr.P.C., to make recovery of Rs. 33,000/- from O.P. Virendra @ Rajendra. It appears that application under Section 125, Cr.P.C. was moved by Smt. Nisha against her husband Virendra @ Rajendra and in execution of the order passed in that case, order dated 2.3.2009 was passed by Family Court Azamgarh to recover the said amount of maintenance. In compliance of that order, tractor No. U.P. 50-L/6080 has been attached by S.O. P.S. concerned. Against the attachment of tractor, an application for release was moved by the applicant and his father Moti Rajbhar in the Court of Judicial Magistrate Court No. 27 Azamgarh on 28.3.2009. The Magistrate concerned rejected the application vide order dated 2.4.2009 holding that the Court has no jurisdiction in the matter, as the tractor No. U.P.50-L/6080 as per report of police station concerned has been attached in compliance of the order passed by Family Court Azamgarh. Prior to that, an application for release of tractor was moved in Family Court, Azamgarh on 7.3.2009, which was rejected on that very day by the Principal Judge Family Court Azamgarh holding that the Family Court Azamgarh has no role in the matter. The applicant and his father did not avail any remedy against the order dated 7.3.2009 passed by Family Court, but against the order dated 2.4.2009 passed by the magistrate, Criminal Revision No/102 of 2009 was preferred, which has been dismissed vide impugned order, against which application under Section 482, Cr.P.C. has been moved in present proceeding.
(3.) THE main submission made by learned counsel is that the applicant and his father Moti Rajbhar are joint registered owner of tractor No. U.P. 50L/ 6080, which has been attached in compliance of the order dated 2.3.2009 passed by Family Court Azamgarh in execution case No. 180 of 2006 and since the applicant and his father have no concern with that case, hence the tractor is liable to be released in their favour. To show their ownership of tractor, the applicant has filed copy of Certificate of Registration (Annexure-1). It is also submitted by learned counsel for the applicant that Virendra @ Rajendra is the grandson of Moti Rajbhar, but property of the applicant and Moti Rajbhar cannot be attached in compliance of the order dated 2.3.2009 passed in execution case No. 180 of 2008, Smf. Msrta v. Virendra @ Rajendra, as the order of granting maintenance allowance under Section 125, Cr.P.C. was passed against Virendra @ Rajendrd and hence the maintenance allowance can be recovered from his property alone and property of other persons cannot be attached for making recovery of maintenance allowance. The contention of the learned counsel is that only Virendra @ Rajendra is liable to pay maintenance to his wife Smt. Nisha in compliance of the order passed in the proceeding under Section 125, Cr.P.C. by Family Court Agamgarh, and hence, for making recovery of maintenance allowance, the tractor aforesaid could not be attached, as Virendra @ Rajendra has no concern with that tractor, which is the joint property of applicant Ram Bali Rajbhar and his father Moti Rajbhar.;