1

A.F.R.

Reserved

CRIMINAL REVISION No. 582 of 2016

Dinesh Kumar Yadav

Vs

State Of U.P. & Anr.

Counsel for Revisionist:- Lalji Yadav

Counsel for Opposite Party:- Mrs. Madhulika Yadav, AGA

***

Hon'ble Dilip B. Bhosale, Chief Justice

Hon'ble Aditya Nath Mittal, J.

Hon'ble Rajan Roy, J.

(Per Hon’ble Dilip B Bhosale, CJ)

The order of reference dated 2

nd

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. Vs 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

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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 Vs State of Madhya Pradesh and

Anr., (1978) 1 SCC 27; National Sewing Thread Co.

Ltd., Chidambaram Vs James Chadwaick and Bros.,

AIR 1953 SC 357; Maharashtra State Financial

Corporation Vs Jayee Drugs & Pharm, (1991) 2 SCC

637 ; and ITI Ltd. Vs Siemens Public Communications

Networks Ltd., (2002) 5 SCC 510 ?”

2.The factual matrix, that occasioned the reference, to the extent

that is necessary, is as under:

2.1A 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.

2.2In 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

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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

Vs. Prashant Ojha, (2015) 2 SCC 99. It was further noticed that in

Chiranjeev Kumar Arya Vs. State of Uttar Pradesh & Anr.

(Criminal Revision No.879 of 2015) and Prabhu Nath Tiwari &

Anr. Vs. 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.

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4.At the very outset, we would like to have a close look at the

judgments mentioned in the second question referred for our

consideration. In Nishant Krishna Yadav (supra), a learned Single

Judge of this Court, relying upon the judgment in Shalu Ojha

(supra), held that a criminal revision against an order passed under

Section 29 of the Act, 2005 is not maintainable. It would be relevant

to reproduce paragraphs 9 to 12 of the judgment, which are relevant

for our purpose:

“9. So long as the submissions raised by the learned

counsel for the revisionist that Hon'ble Supreme Court

while dealing with the case of Shalu Ojha (supra) did

not consider the scope of provisions of Section 28 of the

Act is concerned, I am not in agreement with the

submissions. As is clear from the facts of the case of

Shalu Ojha (supra), orders passed by the learned

Sessions Judge had been challenged by way of

application under Section 482 Cr P C and under Article

227 of the Constitution of India. Hon'ble Supreme

Court after making of brief survey of the provision of

Act i.e. Sections 3, 12, 18, 20, 21, 23 and 29 of the Act

laid down that no further appeal or revision is

provided to the High Court or to any other higher

court against the order of the sessions court under

Section 29 of the Act.

10. The view expressed by the Hon'ble Supreme

Court in Shalu Ojha (supra) case is not casual in

nature but was observed while dealing with the issue

relating to the controversy arisen in the Act and the

same is binding upon all the courts subordinate to

the Hon'ble Supreme Court. It cannot be said that the

view taken by the Hon'ble Supreme Court is not correct

interpretation of the provisions of the D V Act. Looking

to the law laid down by the Hon'ble Supreme Court in

the case of Shalu Ojha (supra) with deepest regard I am

not in agreement with the view expressed by the Kerala

High Court in the case of Baiju and another (supra)

and the Madras High Court in K. Rajendran (supra)

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case. Submissions raised by the learned counsel for the

revisionist regarding maintainability of the present

revision is not acceptable and the criminal revision is not

maintainable.

11. So far as the merit of the case is concerned, since

revision is not maintainable, therefore, I do not find any

necessity to discuss the merit of the case.

12. In view of the above discussion, the Criminal

Revision being not maintainable is dismissed at this

stage itself.”

(Emphasis supplied)

5.In Manju Sree Robinson (supra), a learned Single Judge of

this Court, relying upon Shalu Ojha (supra), differing from the view

taken by another learned Single Judge in Prabhu Nath Tiwari

(supra), held that the only remedy against an order passed under

Section 29 of the Act, 2005, is by way of a writ petition or an

application under Section 482 of Cr P C. Since the jurisdiction of this

Court under Article 226 of the Constitution is an extraordinary

jurisdiction, the aggrieved party has a right to seek remedy under

Section 482 of Cr P C. The relevant observations in Manju Sree

Robinson (supra) read thus:

“Having heard learned counsel for the parties and having

gone through the case laws relied upon by the parties, I

find that the latest pronouncement of the Hon'ble

Supreme Court is that against the order passed by the

Sessions Judge in appeal, no further appeal or revision is

maintainable. In these circumstances, the only remedy

available is to file writ petition or an application

under Section 482 Cr.P.C. Since the jurisdiction of this

Court under Article 226 of the Constitution of India is

an extraordinary jurisdiction, the aggrieved party has

a right to seek remedy under Section 482 Cr.P.C.,

therefore, in my opinion application under Section

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482 Cr.P.C. would be maintainable. At this stage Mr.

Lalit Shukla submits that the writ petition may be treated

as an application under Section 482 Cr.P.C., to which

learned counsel for the opposite party no.2 submits that

this writ petition should be dismissed and liberty be given

to the petitioners to file application under Section 482

Cr.P.C. Since this exercise would amount to further delay

in the matter, therefore, in the interest of justice, the

petitioners are permitted to convert this writ petition into

application under Section 482 Cr.P.C.

Let necessary amendment be made in the memo of the

writ petition during the course of day.

Office is directed to allot regular number of Criminal

Misc. Case (under Section 482 Cr.P.C.).”

(Emphasis supplied)

6.In Chiranjeev Kumar Arya (supra), another learned Single

Judge, after considering the judgment in Shalu Ojha (supra), the

provisions of the Act, 2005, the relevant provisions of Cr P C as also

the judgment of the Supreme Court in Thakur Das (supra) and the

judgment of a Division Bench of this Court in Shafaat Ahmad Vs.

Smt. Fahmida Sardar, AIR 1990 All. 182, so also the judgment of

the Kerala High Court in Baiju Chandran Nair & Anr. Vs. Latha

Balan Nair & Anr., 2011 Crl. LJ 4536, and the judgments in Manju

Sree Robinson (supra) and Nishant Krishna Yadav (supra), held

that a revision under Section 397/401 of Cr P C would be

maintainable before the High Court against a judgment and order

passed by the Court of Sessions under Section 29 of the Act, 2005.

The relevant observations made by the learned Single Judge in

paragraphs 20, 21 and 22 read thus:

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“20. In the case of Shalu Ojha vs. Prashant Ojha

(supra) there was a protection order passed by

Magistrate awarding Rs. 2.5 lacs towards monthly

maintenance, an appeal was preferred under Section 29

of the Act. In appeal an interim order was passed by

Additional Sessions Judge. Appeal was dismissed for

non compliance of the interim order. Matter was taken to

High Court and ultimately to Apex Court. No question

whether order passed in appeal was revisable under

Section 397 Cr.P.C. was before the Court. It has been

stated in the above case that in D.V. Act no further

appeal or revision has been provided to the High

Court. Relying upon these observations this Court

(Hon'ble Mahendra Dayal, J.) has held that no

further appeal or revision is maintainable. Relevant

paragraph of the judgment passed in Writ Petition

(M/S) No. 7926 of 2015 (Mrs. Manju Sree Robinson

& 2 others vs. State of U.P. and others)...........

21. Hon'ble Apex Court has only said that in D.V. Act

no further appeal or revision has been provided.

22.Code of Criminal Procedure has not been

excluded in the D.V. Act. Since, High court's

supervisory power of revision which it can exercise

suo moto against the order passed by subordinate

criminal courts i.e. Magistrate or Sessions Judge has

not been taken away, this court is of the view that

observation made by Apex Court has been wrongly

interpreted and the view taken by Hon'ble Manoj Misra,

J. in the case of Prabhu Nath Tiwari (supra) appears to

be a correct law. Division Bench of this court referred

above was not placed before Hon'ble M. Dayal, J.

Consequently, this Court is of the opinion that Sessions

Judge being subordinate/inferior criminal court to the

High court and there being no specific exclusion of the

Cr.P.C., the revisional power of the High Court, against

the order passed under Section 29 of the D.V. Act are

intact and unaffected. In view of above, preliminary

objection raised by Sri Pankaj Tiwari is overruled.”

(Emphasis supplied)

7.In Prabhu Nath Tiwari (supra), yet another Single Judge of

this Court, held that a revision under Section 397/401 of Cr P C

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before the High Court is maintainable against a judgment and order

passed under Section 29 of the Act, 2005 and, accordingly, he

dismissed the writ petition keeping the remedy of revision available to

the petitioners.

8.It would also be relevant to notice, how a similar question was

considered and dealt with by Kerala High Court in Baiju Chandran

Nair Vs Latha Balan Nair, 2011 Crl. LJ 4536. In this case, a Single

Judge of the Kerala High Court, relying upon the judgment of this

Court in Shafaat Ahmad (supra), held a revision before the High

Court to be maintainable against an order passed in appeal under

Section 29 of the Act. The relevant extract of the judgment is quoted

herein below:-

“16. The next question is whether the judgment of the

Court of Sessions in an appeal under Sec. 29 of the Act is

amenable to the revisional jurisdiction of the High Court under

Sec. 397(1) and 401 of the Code. I stated that the appeal is

governed by the provisions of the Code though right of appeal

is provided by Sec. 29 of the Act. The Act does not say that

judgment of the Court of Sessions is subject to challenge before

any other court. Under Sec. 397(1) of the Code, High Court

may call for and examine the records of any proceeding before

any inferior criminal court. A Court of Sessions is a criminal

court inferior to the High Court for the purpose of exercise

of revisional power under Sec. 397(1) and 401 of the Code.

Sec. 397(1) of the Code empowers the courts specified

therein to call for records of the inferior criminal court and

examine them for the purpose of satisfying themselves as to

whether a sentence, finding or order of such inferior court

is legal, correct or proper or whether the proceedings of

such inferior court is regular. The object of conferring

revisional power is to give the superior criminal courts

supervisory jurisdiction in order to correct miscarriage of

justice arising from misconception of law, irregularity of

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procedure, neglect of proper precautions or apparent

harshness of treatment which has resulted on the one hand

in some injury in the due maintenance of law and order, or

on the other hand in some undeserved hardship to

individuals. The power of revision is supervisory in character

enabling the superior courts to call for records of the inferior

criminal courts and examine them for the purpose of satisfying

themselves that the sentence, finding, order or proceeding of

such inferior court is legal, correct or proper. The Allahabad

High Court in Shafaat Ahmad v. Smt. Fahmida Sardar (AIR

1990 All. 182) considered whether an order under Sec. 3 of the

Muslim Women (Protection of Rights on Divorce) Act is

revisable under Sec. 397(1) of the Code. The said Court held:

“The fact that it has not been said in the Act that

the order under S. 3 is revisable, is of no consequence. A

provision need not be made in every Act and it is

sufficient if it is provided in one Act. The Act provides

that the order is to be passed by the Magistrate and the

Criminal P.C. provides that the order of the Magistrate

can be revised by the High Court. The Act does not

exclude the application of the Criminal P.C. So Criminal

P.C. has to be given effect and the order passed by the

Magistrate under Sec. 3 of the Act becomes revisable in

view of the provisions in the Criminal P.C.”

Judgment of the Court of Sessions in an appeal

though preferred under Sec. 29 of the Act being of an

inferior criminal court, is revisable by the High Court in

exercise of its power under Secs. 397(1) and 401 of the Code.

Petitioners have to take recourse to that remedy. In the

circumstances, I am not inclined to exercise the extraordinary

jurisdiction conferred on this Court under Sec. 482 of the

Code.”

(Emphasis supplied)

9.Before we proceed further, it would be advantageous to have a

glance at the judgment of the Supreme Court in Shalu Ojha (supra).

The proceedings in that case arose from a complaint filed under

Section 12 of the Act, 2005, wherein, an order dated 5.7.2012, passed

by the learned Magistrate granting an amount of Rs.2.5 lacs towards

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monthly maintenance of the wife, was under challenge. Aggrieved by

the said order, the husband carried the matter in appeal under Section

29 of the Act, 2005 before the Additional Sessions Judge, who

granted a stay of the execution of the order under appeal and directed

the husband to pay entire arrears of maintenance due to the wife till

presentation of the appeal, within two months. Since this was not

complied the wife moved an application for execution. The criminal

appeal was dismissed by the learned Sessions Judge for non

compliance of interim directions referred to above. Being aggrieved

by such order the husband initiated proceedings before the High

Court. After some further interlocutory proceedings, which went up to

the Supreme Court by way of a S.L.P. (Crl.) Nos. 6509-10 of 2013,

which was dismissed, an application was filed being Criminal Misc.

Case No. 1975 of 2013 for referring the matter to mediation, which

failed. Thereafter, the High Court directed the husband to pay an

amount of Rs. 10 lacs in two installments and the execution petition

filed by the wife was kept in abeyance. Thereafter, the wife filed an

application before the High Court seeking direction to the husband for

payment of monthly maintenance in terms of the order of the learned

Magistrate dated 05.07.2012. The matter was adjourned several times

and no order could be passed by the High Court. In the said

background the wife filed Special Leave Petition (Crl.) No. 2210 of

2014 before the Supreme Court which was disposed of on 31.03.2014

by setting-side the interim stay granted by the High Court on the

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execution petition filed by her. It was categorically observed that it

was open to her to execute the order of maintenance passed by the

learned Metropolitan Magistrate. The High Court was requested to

dispose of the Appeal of the husband expeditiously. The application of

the wife came to be dismissed as not pressed on a statement made by

her counsel before the High Court. It is against this that the

proceedings were initiated by the wife Shalu Ojha before the Supreme

Court by filing S.L.P. (Crl.) No. 6200 of 2014 (Criminal Appeal No.

2070 of 2014).

9.1In this backdrop, the Supreme Court, before taking any decision

in the matter, as observed in para 13 of the judgment, made a brief

survey of the Act, 2005 insofar as it was relevant for the purpose of

the said case and based thereon made an observation in paragraph 19

as under:-

“19. It can be seen from the DV Act that no further

appeal or revision is provided to the High Court or

any other court against the order of the Sessions

Court under Section 29. It is in the background of the

abovementioned scheme of the DV Act that this case is

required to be considered. The appellant made a

complaint under Section 12 of the DV Act. The

Magistrate in exercise of his jurisdiction granted

maintenance to the appellant. The Magistrate's legal

authority to pass such an order is traceable to Section

20(1) (d) of the DV Act.”

(Emphasis supplied)

9.2In the above case, against the order of the Magistrate an appeal

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was filed under Section 29 of the Act, 2005, and thereafter the matter

went up to the High Court under Section 482 Cr.P.C. and Article 227

of the Constitution. It was not a case where a revision had been filed

before the High Court against an order passed by the Sessions Court

under Section 29 of the Act, 2005. The Supreme Court considering

the scheme of the Act, 2005 and the powers vested in the Appellate

Court under Section 29 opined in para 23 that “in a matter arising

under a legislation meant for protecting the rights of women, the High

Court should have been slow in granting interim orders, interfering

with the orders by which maintenance is granted to the appellant, as

on account of it the wife was denied the fruits of the maintenance

order even after 2 years of the order.” It accordingly allowed the

appeal of the wife and issued directions for payment of maintenance

allowance. A careful perusal of the judgment of the Supreme Court in

Shalu Ojha (supra) shows that the first question, that has been

referred to the Full Bench, did not directly or substantially fall for

consideration of the Supreme Court.

10.In order to provide a remedy for the protection of women who

have been victims of domestic violence and to prevent occurrence of

incidents of domestic violence in society, the Act was introduced by

the Parliament which received the assent of the President of India on

13.9.2005 and, accordingly, it came on the Statute Book as The

Protection of Women From Domestic Violence Act, 2005 (43 of

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2005). This Act provides for more effective protection of the rights of

women guaranteed under the Constitution who are victims of violence

of any kind occurring within the family and for matters connected

therewith or incidental thereto.

11.The Act, 2005 defines an ‘aggrieved person’ to mean any

woman who is, or has been, in a domestic relationship with the

respondent and who alleges to have been subjected to any act of

domestic violence by the respondent. The definition of ‘domestic

relationship’ is wide enough to cover not only a husband and wife but

any two persons related by consanguinity, marriage, or through a

relationship in the nature of marriage, adoption or are family

members living together as a joint family.

11.1Section 3 of Chapter II of the Act, 2005 defines ‘domestic

violence’. Chapter III of the Act, 2005 deals with powers and duties

of Protection Officers, Service Providers, etc. Since we are not

concerned with this Chapter for addressing the questions, we are not

making further reference to the provisions contained in this Chapter.

11.2Chapter IV of the Act, 2005 is relevant for our purpose, which

consists of Sections 12 to 29. This Chapter provides the procedure for

obtaining orders of relief. In other words, it provides a remedy to an

aggrieved person against domestic violence under Sections 12, 18, 19,

20, 21, 22 and 23. Section 12 provides for an application to

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Magistrate seeking one or more reliefs under the Act, 2005. Section

18 empowers the Magistrate, after granting the aggrieved person and

the respondent an opportunity of being heard and on being prima

facie satisfied that domestic violence has taken place or is likely to

take place, pass a protection order in favour of the aggrieved person

and prohibit the respondent from committing an act as contemplated

in clauses (a) to (g) of this Section. Section 19 empowers the

Magistrate to pass a residence orders, whereas Section 20 to grant

monetary relief in favour of the aggrieved person. Section 21 deals

with custody order, while Section 22 deals with compensation order

and Section 23 empowers the Magistrate to grant interim or ex parte

order.

11.3Section 28 provides that proceedings under the Act, 2005

relating to application and orders for reliefs and offence of breach of a

protection order or interim protection order by the respondent shall be

governed by the provisions of Cr P C. Sub-section (2) of Section 28

envisages that the Court may lay down its own procedure for disposal

of applications for any relief or for grant of ex parte orders. Section

29 provides that an appeal from an order made by the Magistrate shall

lie to the Court of Sessions within thirty days from the date on which

the order made by the Magistrate is served on the aggrieved person or

the respondent whichever is later. It would be relevant to reproduce

Sections 28 and 29 to understand the purport of these provisions.

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Sections 28 and 29 read thus:

“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.

29. Appeal- There shall lie an appeal to the Court of

Session within thirty days from the date on which the

order made by the Magistrate is served on the aggrieved

person or the respondent, as the case may be, whichever

is later.

11.4Section 36 in Chapter V of the Act, 2005 is also relevant for our

purpose, which stipulates that the provisions of the Act shall be in

addition to, and not in derogation of the provisions of any other law,

for the time being in force. Section 36 reads thus:

36. Act not in derogation of any other law.- The

provisions of this Act shall be in addition to, and not in

derogation of the provisions of any other law, for the time

being in force.

11.5It would also be relevant to have a glance at Sections 4, 5, 397

and 401 of Cr P C, which read thus:

4. Trial of offences under the Indian Penal Code and

other laws.

(1) All offences under the Indian Penal Code (45 of 1860)

shall be investigated, inquired into, tried, and otherwise

dealt with according to the provisions hereinafter

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contained.

(2) All offences under any other law shall be investigated,

inquired into, tried, and otherwise dealt with according to

the same provisions, but subject to any enactment for the

time being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing

with such offences.

5. Saving. Nothing contained in this Code shall, in the

absence of a specific provision to the contrary, affect any

special or local law for the time being in force, or any

special jurisdiction or power conferred, or any special

form of procedure prescribed, by any other law for the

time being in force.

397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for

and examine the record of any proceeding before any

inferior Criminal Court situate within its or his local

jurisdiction for the purpose of satisfying itself or himself

as to the correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the

regularity of any proceedings of such inferior Court, and

may, when calling for such record, direct that the

execution of any sentence or order be suspended, and if

the accused is in confinement, that he be released on bail

or on his own bond pending the examination of the

record.

Explanation.- All Magistrates whether Executive or

Judicial, and whether exercising original or appellate

jurisdiction, shall be deemed to be inferior to the Sessions

Judge for the purposes of this sub- section and of section

398.

(2) The powers of revision conferred by sub- section (1)

shall not be exercised in relation to any interlocutory

order passed in any appeal, inquiry, trial or other

proceeding.

(3)If an application under this section has been made by

any person either to the High Court or to the Sessions

Judge, no further application by the same person shall be

entertained by the other of them.

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401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has

been called for by itself or Which otherwise comes to its

knowledge, the High Court may, in its discretion,

exercise any of the powers conferred on a Court of

Appeal by sections 386, 389, 390 and 391 or on a Court

of Session by section 307 and, when the Judges

composing the Court of revision are equally divided in

opinion, the case shall be disposed of in the manner

provided by section 392.

(2) No order under this section shall be made to the

prejudice of the accused or other person unless he has

had an opportunity of being heard either personally or by

pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a

High Court to convert a finding of acquittal into one of

conviction.

(4) Where under this Code an appeal lies and no appeal is

brought, no proceeding by way of revision shall be

entertained at the instance of the party who could have

appealed.

(5) Where under this Code an appeal lies but an

application for revision has been made to the High Court

by any person and the High Court is satisfied that such

application was made under the erroneous belief that no

appeal lies thereto and that it is necessary in the interests

of justice so to do, the High Court may treat the

application for revision as a petition of appeal and deal

with the same accordingly.”

11.6It is against this backdrop that we now proceed to deal with the

questions that are referred to for our consideration. It can be seen from

the Act, 2005 that no further appeal or revision is provided for before

the High Court or any other Court against the order of the Sessions

Court under Section 29, as observed by the Supreme Court in Shalu

Ojha (supra). The Supreme Court in that case had no occasion to

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consider whether a further remedy by way of revision can be taken

under Section 397/401 of Cr P C, assailing an order of the Court of

Sessions passed under Section 29 of the Act, 2005. In other words, the

question of maintainability of a revision before the High Court under

the provisions of Cr P C, assailing an order under Section 29 of the

Act, 2005, was neither specifically raised, nor considered nor

addressed/decided.

12.It is trite that the ratio decidendi is to be understood on a

reading of the entire judgment keeping in mind the issues involved,

argued, considered and decided. Every observation made in a

judgment is not part of its ratio. It is true that even a general

observation or obiter dicta of the Supreme Court is to be given

considerable weight. We have no doubt that the Act, 2005 does not

prescribe any further appeal or revision to the High Court or any other

Court against an order of the Sessions Court under Section 29

specifically and this is evident from a bare perusal of the Act, but, it is

also a fact that the provisions of Section 397 of Cr P C were not taken

into consideration in the aforesaid judgment, obviously for the reason

that the maintainability of a revision under the said provision was not

an issue involved therein. Reference may be made in this regard to a

judgment of the Bombay High Court rendered by one of us (Dilip B

Bhosale, J) in Shailaja A. Sawant (Dr) Vs Sayajirao Ganpatrao

Patil, 2004 (5) Bom. CR 548, In that case, after considering several

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judgments of the Supreme Court, the distinction between a ratio

decidendi and obiter dicta as also its precendenciary value was

considered, the relevant extract of which is quoted herein below:-

“18. Thus, the law is now well settled as to what a ratio

decidendi is. An obiter dictum as distinguished from ratio

decidendi is an observation by the Court on a legal

question suggested in a case before it but not arising in

such manner as to require a decision. The law, which will

be binding under Article 141 of the Constitution of India

extends to all observations of the points raised and

decided by the Court in a given case. The only opinion,

which would be binding, would be an opinion expressed

on a question that arose for determination of a Supreme

Court. "Obiter dicta", therefore, as observed by the

Supreme Court in State of Orissa v. Sudhansu Shekar

Misra (supra), must be distinguished from casual

observations made in a judgment on a point not calling

for decision and not argued before the Court. The

observation made in passing with reference to a general

scheme of the Act would not constitute an obiter dicta

which is binding upon this Court on questions of

interpretation. A question which never arose before the

Supreme Court, which was never argued, which was

never considered and which was never decided could not

be, therefore, termed as "obiter dicta". In the present case,

the Supreme Court in the case of Dr. J. J. Merchant was

not considering the issue as to whether the Court has

power to extend the time beyond the period prescribed

under the provisions of Section 13 of the Consumer

Protection Act or under Order 8, Rule I of the Civil

Procedure Code for that matter. Arguments were not

advanced in that case on the question involved in the

present writ petition or the question that was involved in

the case of Topline Shoes Ltd. (supra). Therefore, in my

opinion, the observations made by the Apex Court in Dr.

J. J. Merchant case will not come in my way for deciding

the issue whether the trial Court has power to extend the

time for filing written statement prescribed under Order

8, Rule 1.”

13.It is also relevant to mention that the judgment of the Supreme

Court in Shalu Ojha (supra) was considered by the learned Single

20

Judge in Chiranjeev Kumar Arya in a judgment dated 29.06.2016

and a Revision was held to be maintainable, inter alia, relying upon

an earlier judgment of the Supreme Court in Thakur Das (supra).

The said judgment was carried to the Supreme Court and the S.L.P.

filed against it has been dismissed on 12.08.2016. As already noticed

earlier, therefore, the proposition laid down therein has attained

finality. Thus, our view is supported by this development also.

14.In view of the above discussion, we are of the considered view

that the observations of the Supreme Court in Shalu Ojha's case

(supra) as contained in paragraph 19 do not tie our hands in

considering the questions referred to us as the same did not fall for

consideration directly and substantially before the Supreme Court.

15.A perusal of the Act, 2005, specially Section 28 thereof, reveals

that all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 are

to be governed by the provisions of Cr P C, save as otherwise

provided in the said Act. The offences under Section 31 are also to be

governed by the said Code. Sub-section (2) of Section 28 permits the

Court to lay down its own procedure for disposal of an application

under Section 12 or under Sub-section (2) of Section 23

notwithstanding anything in Sub-section (1) thereof. Sub-section (2)

is not attracted in the present case.

16.Section 36 of the Act, 2005 says that “the provisions of this Act

21

shall be in addition to, and not in derogation of the provisions of any

other law, for the time being in force.

17.Section 29 of the Act, 2005 provides that “there shall lie an

appeal to the Court of Sessions.” Section 29 does not indicate the

procedure applicable to such proceedings of an appeal. There is no

provision in the Act, 2005 which permits the Court to lay down its

own procedure for hearing an appeal under Section 29. The Rule

making power under Section 37, even if stretched to include the

power to make rules of procedure for an appeal under Section 29 by

virtue of the generality of the provision contained in Sub-section (1)

thereof, none of the parties have placed before the Court any Rules

prescribing such procedure for an appeal as aforesaid.

18.The question is what is the procedure prescribed for an appeal

under Section 29. After all there has to be some procedure in this

regard. The answer lies in the use of the words “there shall lie an

appeal to the Court of Sessions.” The Court of Sessions referred

therein is a Court of Sessions referred in Section 6 read with Sections

7 and 9 of the Cr P C, as the Act, 2005 does not define the said term.

It is trite that whenever a remedy is provided before an already

established Court, without saying anything more, the procedure

ordinarily applicable to such a Court applies for the purposes of such

remedy also. Reference may be made in this regard to the

pronouncement of the Supreme Court in the case of National Sewing

22

Thread Co. Ltd, Chidambaram (supra), wherein it was observed

thus:

“...The rule is well settled that when a statute

directs that an appeal shall lie to a Court already

established, then that appeal must be regulated by the

practice and procedure of that Court. This rule was very

succinctly stated by Viscount Haldane L.C. in National

Telephone Co. Ltd. vs. Postmaster-General, (1913) AC

546 (A), in these terms:-

"When a question is stated to be referred to an

established court without more, it in my opinion,

imports that the ordinary incidents of the procedure of

that Court are to attach, and also that any general right

of appeal from its decision likewise attaches.”

The same view was expressed by Their Lordships

of the Privy Council in - Adalkappa Chettiar vs.

Chandresekhara Thevar, AIR 1948 PC 12 (B), wherein it

was said:

"Where a legal right is in dispute and the ordinary

courts of the country are seized of such dispute the

Courts are governed by the ordinary rules of

procedure applicable thereto and an appeal lies if

authorized by such rules, notwithstanding that the

legal right claimed arises under a special statute

which does not, in terms confer a right of appeal."

The ratio contained in the said judgment, as quoted

hereinabove, applies on all its fours to the present case before us.

19.In Secretary of State for India Vs. Chellikani Rama Rao,

AIR. 1916 PC 21, the question arose as to whether a Letter's Patent

Appeal was maintainable from a judgment of a Single Judge rendered

in proceedings arising out of Section 76 of the Trade Marks Act. The

Supreme Court held that Section 76 of the Trade Marks Act confers a

23

right of appeal to the High Court “and says nothing more about it”.

That being so, it held that the High Court has to exercise its other

appellate jurisdiction by a Single Judge. Therefore, his judgment

becomes subject to appeal under Clause 15 of Letter's Patent Act,

“there being nothing to the contrary in the Trade Marks Act.” Thus,

the procedure applicable to the proceedings before the Single Judge

under the Rules of the Court or the Letter's Patent Act was made

applicable on the reasoning that the Trade Marks Act prescribed an

appeal to the High Court without saying anything more “as regards

the procedure to be followed” and there being nothing to the contrary

in the Trade Marks Act (excluding any such procedure). This

judgment was also considered in National Sewing Thread's case

(supra).

20.These judgments have also been referred and relied upon by the

Supreme Court in the case of Maharashtra State Financial

Corporation (supra), wherein, a similar proposition has been laid

down while considering the applicability of the Cr P C to the

proceedings before the District Judge under the State Financial

Corporation Act, 1951.

21.In the case of ITI Ltd. (supra), the question which fell for

consideration before the Supreme Court was regarding the

maintainability of a revision under Section 115 of the Code of Civil

Procedure, 1908 before the High Court against an order passed by a

24

Civil Court in an appeal preferred under Section 37 of the Arbitration

and Conciliation Act, 1996, specially, when a Second Appeal was

statutorily barred under the Act and the Code of Civil Procedure was

not specifically made applicable. Thus, the question was quite similar

to the one referred to us. The Supreme Court opined in paragraph 10

as under:-

“...It is true in the present Act application of the

Code is not specifically provided for but what is to be

noted is: is there an express prohibition against the

application of the Code to a proceeding arising out of the

Act before a Civil Court? We find no such specific

exclusion of the Code in the present Act. When there is

no express exclusion, we cannot by inference hold that

the Code is not applicable.”

21.1Rendering a concurring judgment in the said case D.M.

Dharmadhikari, J of the Supreme Court observed in paragraph 19

thereof thus:

"...when a special Act on matters governed by that

Act confers a jurisdiction on an established court, as

distinguished from a persona designata, without any

words of limitation, then the ordinary incident of

procedure of that court including right of appeal or

revision against its decision is attracted...”

21.2Based on the aforesaid reasoning and following the judgments

already referred earlier, the Supreme Court held a revision under

25

Section 115 of C P C to be maintainable against an order passed under

Section 37 of the Arbitration and Conciliation Act, 1996.

22.Further more, in the case of Thakur Das (supra) the question

which fell for consideration before the Supreme Court was regarding

maintainability of a Revision under Section 435 and 439 of the Code

of Criminal Procedure 1898 (old Code) against an order passed by the

Sessions Judge under Section 6-C of the Food and Essential

Commodities Act, 1955 (hereinafter referred to as 'the Act, 1955').

Sections 439 and 435 of the old Cr P C and Sections 397 and 401 of

the existing Code of Criminal Procedure, 1973, are in pari materia,

and, therefore, the question which fell for consideration in the said

case was similar to the one referred to us. Under Section 6-C of the

Act, 1955 the State Government was empowered to appoint a judicial

authority to hear an appeal. The State Government issued a

notification appointing the Sessions Judge as Appellate Authority. The

Supreme Court on a consideration of the aforesaid issue held that the

Sessions Judge exercising power of appeal under Section 6-C of the

Act, 1955 would only be the Judge Presiding over the Sessions Court

and discharging the functions of that Court constituted under Section

7 and 9 of the Code of Criminal Procedure, 1898. The case at hand is

no different and the said observations apply to the present case also.

The Supreme Court further held that the Sessions Judge acting as an

Appellate Authority under Section 6-C of the Act, 1955 “exercising

26

judicial power of the State is an authority having its own hierarchy of

superior and inferior Court, the law of procedure according to which

it would dispose of matters coming before it depending upon the

nature of jurisdiction exercised by it acting in judicial manner.” Thus,

it held that the law of procedure applicable to a Sessions Court would

apply to the Appellate Authority under Section 6-C as he was not a

persona designata but a person ascertainable as a member of Class or

as filling a particular character. It was further held in paragraph 11

that “the Sessions Judge though appointed as an Appellate Authority

by the State Government was the Sessions Court constituted under the

Code of Criminal Procedure and it being Court of inferior character in

relation to the High Court, therefore, against the order made in

exercise of powers conferred by Section 6-C of the Act, 1955 a

revision application would lie to the High Court under Section 435

and 439 of the Code of Criminal Procedure, 1898”. This judgment

virtually clinches the issue as regards the questions referred to us.

23.Under Section 397 of Cr P C “the High Court or any Sessions

Judge may call for and examine the record of any proceeding before

any inferior Criminal Court...”. That the Court of Sessions is as an

inferior Court to the High Court, cannot be disputed. Thus, the Court

of Sessions before which an appeal has been prescribed under Section

29 of the Act, 2005 is a Criminal Court inferior to the High Court and,

therefore, a revision against its order passed under Section 29 will lie

27

to the High Court under Section 397 Cr P C. Section 401 Cr P C is

supplementary to Section 397 Cr P C.

23.1Section 4 (2) Cr P C does not have any application to the

present case. Since the Act, 2005 does not prescribe any special form

of procedure either for the proceedings under Sections 12, 18, 19, 20,

21, 22 and 23 or for an appeal under Section 29, therefore, Section 5

is also not attracted.

23.2In view of the above, as the remedy of an appeal had been

provided under Section 29 of the Act, 2005 before a Court of

Sessions, which means a Court of Sessions referred under Section 6

read with Sections 7 and 9 of the Cr P C, without saying anything

more as regards the procedure to be followed in such appeal, and

there being nothing to the contrary in the Act of 2005 which may be

indicative of exclusion of the application of the provisions of Cr P C

to such an appeal, the normal remedies available against a judgment

and order passed by a Court of Sessions by way of appeals and

revisions prescribed under the Cr P C before the High Court, are

available against an order passed in appeal under Section 29 of the

Act, 2005.

24.The Single Judge Benches of this Court in the case of Nishant

Krishan Yadav (supra) and Mrs. Manju Sree Robinson (supra)

have erred in holding that such a criminal revision is not maintainable

28

before the High Court. The judgment in Chiranjeev Kumar Arya

(supra) against which the Special Leave Petition has been dismissed

by the Supreme Court on 12.08.2016 and the judgment in

Prabhunath Tiwari (supra) lay down the law correctly.

25.In the result, we answer the first question in the affirmative

holding that the decisions in Nishant Krishna Yadav (supra) and

Manju Shree Robinson (supra) do not lay down the law correctly. In

other words, we hold that a revision under Section 397/401 of Cr P C

against a judgment and order passed by the Court of Sessions under

Section 29 of the Act, 2005 is maintainable and that the decisions in

Nishant Krishna Yadav (supra) and Manju Shree Robinson (supra) do

not lay down the law correctly.

Reference is answered, accordingly.

Registry is directed to place the Criminal Revision No.582 of

2016 before learned Single Judge for hearing on merits.

Date:27

th

October, 2016

RKK/-

(Dilip B Bhosale, CJ)

(A N Mittal, J)

(Rajan Roy, J)