Ghulam Qadir Shah vs Mst. Mehmooda Bano

Gh. Hasnain Masoodi, J.—The petitioner invoking inherent powers of this Court u/s 561-A of Cr.P.C, seeks quashment of order of learned

Additional Sessions Judge, Baramulla, dated 30.05.2009 passed in revision petition, file No. 16/1/N titled ""Ghulam Qadir Shah v. Mst.

Mehmooda Bano"" as also order of learned Chief Judicial Magistrate, Sopore, dated 14.07.2007 passed in application titled ""Mst. Mehmooda

Bano v. Ghulam Qadir Shah"" u/s 488 of Cr.P.C.

First a look at the backdrop against which the present petition has been filed.

The petitioner is father of respondent, Mst. Mehmooda Bano. It appears that the respondent herein filed an application u/s 488 of Cr.P.C,

against her father-the petitioner, in the court of Chief Judicial Magistrate, Sopore. Alongside the application u/s 488 of Cr.P.C, an application for

interim maintenance was also filed on 11.11.2006. Learned Chief Judicial Magistrate, Sopore, vide order dated 14.07.2007 allowed the prayer

for grant of Interim maintenance and directed the petitioner to pay an amount of Rs. 1000/- per month as maintenance allowance to the

respondent.

The petitioner aggrieved of the order of learned Chief Judicial Magistrate, Sopore, dated 14.07.2007 called in question the order through the

medium of criminal revision petition before the 1st Additional Sessions Judge, Baramulla. The revisional court, not impressed by the grounds of

attack detailed in the revision petition rejected the revision petition vide order dated 30.05.2009. The revisional court nonetheless granted

indulgence to the petitioner by slashing down the maintenance allowance from Rs. 1000/- per month to Rs. 700/- per month.

The petitioner assails the orders of learned 1st Additional Sessions Judge, Baramulla, as also of learned Chief Judicial Magistrate, Sopore, on

the grounds that the respondent is, on her own showing, adult and thus no liability could be fastened on the petitioner to maintain the respondent. It

is further argued that the respondent is a working lady and employed in Social Welfare Department and thus has sufficient sources to maintain

herself. It is insisted that the courts below have failed to take notice of the aforesaid three facets of the case and in hot haste proceeded to dispose

of the prayer for grant of interim maintenance. It is also pleaded that the petitioner is an old man of 70 years and is not possessed of sufficient

resources to pay maintenance allowance to the respondent.

I have gone through the petition u/s 561-A and heard learned Counsel for the petitioner.

The inherent powers envisaged u/s 561-A Code of Criminal Procedure are to be exercised only to prevent abuse of the process of the court or

otherwise to secure the ends of justice. Section 561-A Cr.P.C, may also be pressed into service to give effect to an order under the Code. No

doubt the inherent powers in the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it, yet the

powers are to be exercised sparingly and with utmost circumspection. Supreme Court in AIR 2008 SCW 1003 while dealing with scope of

inherent powers of the High Court has been pleased to observe:

In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers u/s 482 of the Code in

a routine manner. It has been consistently held that the power u/s 482 must be exercised sparingly, with circumspection and in rarest of rare cases.

Exercise of inherent power u/s 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is

brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would

be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In

other words, the inherent power of the u/s 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of

process of any Court or otherwise to secure the ends of justice.

We may observe here that despite this Court consistently held in catena of decisions that inherent power of the High Court should not be

exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come

across the High Court exercising the inherent power u/s 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice

setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as

the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to

be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power u/s 482

is not intended to scuttle justice at the threshold.

Let us now turn to the petition in hand.

It hardly needs any emphasis that the pleas raised by the petitioner in the petition in hand are factual in character. The relationship of father and

daughter having been admitted before the courts below, the grounds urged by the petitioner to wriggle out of obligation to maintain the respondent

are to be substantiated before the trial Magistrate. The petitioner cannot make use of Section 561-A as a tool to hijack proceedings from the trial

Magistrate and convert this Court into a court of fact. The trial court is the right forum where all such grounds and any other factual ground as may

be available to the petitioner, are to be agitated and proved at the touch stone of relevant rules. The respondent is to be given a fair opportunity to

contest the petitioner's claim as regards her having sufficient sources to fall back upon as also inability of the petitioner to maintain the respondent

because of lack of financial resources. It is to be kept in mind that the order of interim maintenance is a threshold order, and main application is yet

to be heard. The interim maintenance order is subject to outcome of the main application and modification if any that may be made at any

subsequent stage.

Having regard to the aforesaid facts, the petition being without merit is dismissed. Learned trial Magistrate nonetheless shall take steps for

expeditious disposal of the matter and as far as possible decide the main application u/s 488 Cr.P.C, within two months from the date the copy of

the order is received. Needless to mention that the petitioner shall be at liberty to make an appropriate application before the trial court for

modification of the order dated 14.07.2007 if the facts and circumstances so entitle. The amount of interim maintenance, if any, deposited be

released in favour of the respondent against proper receipt.

Petition dismissed along with connected Cr.MP.