SCR.A/371/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 371 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= VISHAL BALVANTRAI DAVE - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MS ARCHANA R ACHARYA for Applicant(s) : 1, MR M.R.MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MS AMRITA AJMERA for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/09/2008 ORAL JUDGMENT 1. Rule. Ms.Amrita Ajmera, learned Advocate for respondent Nos.2 and 3 waives service of Rule. Mr.M.R.Mengdey, learned APP waives service of Rule on behalf of respondent No.1. With the consent of the learned Advocates appearing on behalf of the SCR.A/371/2008 2/5 JUDGMENT respective parties, the application is taken up for final hearing today. 2. It is the case on behalf of the petitioner – husband that being aggrieved and dissatisfied with the judgment and order passed by the learned Chief Judicial Magistrate, Surendranagar dated 31.08.2007 passed in Criminal Misc.Application No.50 of 2004 awarding maintenance in favour of the original claimants (respondent Nos.2 and 3), the petitioner has preferred Criminal Revision Application No.62 of 2007 before the learned Revisional Court. In the said Revision Application, the petitioner has also submitted application Exh.4 to grant interim relief / staying the order passed by the learned trial Court in Criminal Misc.Application No.50 of 2004 by which the learned trial Court has directed the petitioner to pay maintenance at the rate of Rs.6000/- per month to wife and Rs.3000/- per month to minor. It appears that being aggrieved and dissatisfied with the judgment and order passed by the learned trial Court awarding aforesaid maintenance, even wife has also preferred Criminal Revision Application No.65 of 2007. In the Revision Application No.62 of 2007, respondent Nos.2 and 3 submitted application Exh.9 directing the applicant to deposit entire amount awarded by the learned trial Court vide order passed in Criminal Misc.Application No.50 of 2004. A grievance voiced in the present Special Criminal Application is that without even considering and/or taking up application submitted by the petitioner SCR.A/371/2008 3/5 JUDGMENT submitted below Exh.4 to stay judgment and order passed in Criminal Misc.Application No.50 of 2007, the learned Revisional Court allowed application Exh.9 and has directed the petitioner to deposit the entire amount of Rs.3,63,000/- and until and unless the said entire amount is deposited, further proceedings of Revision Application No.62 of 2007 are stayed. 3. Ms.Archana Acharaya, learned Advocate for the petitioner has submitted that as such as on today, the applicant has deposited an amount of Rs.1,95,000/- which is withdrawn by respondent Nos.2 and 3. It is submitted that if the applicant is directed to deposit entire amount of maintenance and application below Exh.4 submitted by the petitioner is not considered on merits at all, application Exh.4 would become infructuous. It is submitted that the learned Revisional Court ought to have considered the application Exh.4 on merits. Therefore, it is requested to direct the learned Revisional Court to take up application Exh.4 submitted in Criminal Revision Application No.62 of 2007 for hearing and to pass appropriate order in accordance with law and on merits. 4. Ms.Ajmera, learned Advocate for respondent Nos.2 and 3 has submitted that attitude of the applicant before the learned Revisonal Court was such that he was not ready and willing to deposit any amount and as it was the question of maintenance SCR.A/371/2008 4/5 JUDGMENT amount of respondent Nos.2 and 3 being wife and minor, aforesaid direction has been issued. 5. Heard the learned Advocates appearing on behalf of the respective parties. 6. As emerges from the above, it appears that the application below Exh.4 submitted by the applicant in Criminal Revision Application No.62 of 2007 to stay the order of maintenance passed by the trial Court is pending and yet to be considered by the learned Revisional Court on merits. It prima- facie appears that order passed below Exh.9 passed by the learned Revisional Court in Criminal Revision Application No.62 of 2007 directing the petitioner to deposit entire amount of Rs.3,63,000/- and until and unless the said amount is deposited, proceedings of said Revision Application are stayed, can be said to be too harsh and cannot be sustained. It is different thing that after considering application Exh.4 on merits, the learned Revisional Court may pass conditional order or even dismiss the application for stay, but the learned Revisional Court cannot say that Criminal Revision Application will not be heard at all till entire amount is deposited without even taking up the application for stay on hands. Under the circumstances, impugned order deserves to be quashed and set aside and the learned Revisional Court is to be directed to take application Exh.4 in Criminal Revision Application No.62 of 2007 for hearing and to pass appropriate order in accordance SCR.A/371/2008 5/5 JUDGMENT with law and on merits after giving opportunity to both the parties. 7. For the reasons stated above, the petition succeeds. Impugned order dated 05.02.2008 passed by the learned Revisional Court below Exh.9 in Criminal Revision Application No.62 of 2007 is hereby quashed and set aside. The learned Revisional Court is directed to take up application Exh.4 submitted in Criminal Revision Application No.62 of 2007 for hearing and pass appropriate order in accordance with law and on merits after hearing both the parties. The learned Revisional Court to decide and dispose of the said application in accordance with law and on merits without in any way being influenced by the present order and for which this Court has not expressed any opinion on merits. It is ultimately for the learned Revisional Court to pass an appropriate order on the said application. Application Exh.4 in Criminal Revision Application No.62 of 2007 be heard, decided and disposed of at the earliest but not later than one month from the date of receipt of this order. It will be open for the parties to submit appropriate application for hearing Criminal Revision Application No.62 of 2007 and Criminal Revision Application No.65 of 2007 together, which may also be considered by the learned Revisional Court. Rule is made absolute accordingly. Direct service is permitted. [M.R.Shah,J.] satish