Govinda Reddy vs Varalakshmamma and Another

B. Subhashan Reddy, J.—This revision is filed by the husband-petitioner aggrieved by the remand order passed by the Court of Sessions, Anantapur in the proceedings u/s 125, of Cr.P.C.

The wife-respondent No. 1 had instituted M.C. No. 4 of 1989 on the file of the Munsiff Magistrate, Kalyandurg claiming maintenance at the rate of Rs. 500/- per month. The petitioner had resisted the same on the ground that the 1st respondent was living apart without just cause. There is no other allegation excepting this. The case set-up by the 1st respondent was accepted by the Court of Magistra ordering maintenance at the rate of Rs. 200/- per month. Aggrieved by me quantum, the wife filed a revision and the petitioner had also filed a revision aggrieved by the order mulcting him with the liability of maintenance on the ground that when he was ready to maintain her, it was her fault in staying apart. Both the revisions were heard together by the Court of Sessions, Anantapur and remanded the matter to the Court of Magistrate for fresh enquiry.

Mr. K.V. Ramana Rao, the learned Counsel for the petitioner, submits that the Court of Sessions exercising revisional jurisdiction u/s 397, Cr.P.C. was not entitled to remand the matter. He cites Section 391 of Cr.P.C. and also a judgment of Kerala High Court rendered in Kesavan Nair v. State of Kerala 1979 KLT 635, in support of his contention. The said judgment has been delivered in the facts of that case and revolving upon the power exercised by the Court of Sessions and it cannot be read as laying down the law that power of remand was not available to the Court of Sessions. The learned Counsel for the petitioner then submits that the power of remand is available only to an Appellate Court and not a Revisional Court. He submits that as provided u/s 391, Cr.P.C. where Appellate Court is expressly empowered to take additional evidence or call for a finding from the Magistrate, no such power is expressly provided u/s 397 of Cr.P.C. and unless such power is expressly provided, the power of remand cannot be exercised. I do not concur with this argument. An order passed u/s 125, Cr.P.C. is not appealable. It is only revisable u/s 397, Cr.P.C. Section 397 of Cr.P.C. provides the machinery for calling the records from the lower Court, while Section 399 thereof furnishes the power, by which it can be disposed of. u/s 399, Cr.P.C. the Sessions Judge can exercise all or any of the powers which may be exercised by the High Court u/s 401(1) of Cr.P.C. u/s 401(1), Cr.P.C. the High Court can exercise all or any of the powers conferred on Court of Appeal u/s 391, Cr.P.C. apart from other provisions Under Sections 307, 386, 389 and 390 of Cr.P-C. If that be so, the Sessions Judge exercising his revisional jurisdiction u/s 397 of Cr.P.C. is entitled to exercise all the powers conferred on a Court hearing the appeal u/s 391 of Cr.P.C. and as a necessary corollary, can exercise the power of remand also. Even in the absence of such a provision, the powers of a Sessions Judge as a Revisional Court cannot be read as disabling him from ordering the remand, as such a power is implicit while exercising the revisional jurisdiction and more so when the appeal is not provided. In the circumstances, I hold that the Court of Sessions was having jurisdiction while exercising powers u/s 397, Cr.P.C. to set aside the order of the lower Court and to remand for re-enquiry by the Magistrate.

Mr. K.V. Ramana Rao, the learned Counsel for/ the petitioner further submits that even if the remand order is valid, the Court of Sessions had become function officer with the passing of the order setting aside the order of grant of maintenance by the Court of Magistrate and had grossly erred in ordering the interim maintenance. I concur with the learned Counsel that the Court of Sessions instead of exercising power itself ought to have directed the Magistrate to consider the same. But, merely because the said approach has not been made by the Court of Sessions, I need not nullify the said order of interim maintenance as the powers to grant interim maintenance pending the proceedings u/s 125, Cr.P.C. have been well established right from the case of Savitri Rawat Vs. Govind Singh Rawat, , rendered by the Supreme Court and then followed by the High Courts in innumerable cases. The said quantum is also not unreasonable because of the prima facie evidence available. It has to be noted that Section 125, Cr.P.C. has been incorporated for avoiding the vagrancy of the dependents when they are neglected. It is also the experience that the cases u/s 125, Cr.P.C. are being prolonged and protracted. In such circumstances, in order to provide speedy justice, provision ''for pendente life maintenance has got to be made even though statute did not specifically provide for interim maintenance. Exercising my inherent powers u/s 482, Cr.P.C. I confirm the said order of interim maintenance.

In the circumstances, the Criminal Revision Case is dismissed. Time for payment of arrears is granted by two months from the date of receipt of a copy of this order. It is needless to mention that amounts, if any, paid already shall be given set off. Future maintenance shall be paid regularly before the 10th day of each English calendar month.