Harlal vs Smt. Beti Bai

G.P. Mathur, J.—Smt. Beti Bai filed an application u/s 125, Code of Criminal Procedure which was allowed by the learned Magistrate by the judgment and order dated 21.4.86 and the applicant Harlal was directed to pay her maintenance at the rate of Rs. 150 per month. The revision preferred by the applicant was dismissed by the learned Sessions Judge on 7.8.86. The present petition u/s 482, Code of Criminal Procedure has been filed for quashing of the aforesaid orders.

The question whether it is open to a party to invoke the Jurisdiction of this Court u/s 482, Code of Criminal Procedure who has unsuccessfully assailed the order passed by a Magistrate in proceedings u/s 125 or 133 or 145, Code of Criminal Procedure by filing a revision before the learned Sessions Judge u/s 399, Code of Criminal Procedure has been considered by a Full Bench In H.K. Rawal v. Nidhi Prakash 1989 ALJ 732 . The Full Bench after considering the decisions of Supreme Court in Madhu Limaye Vs. The State of Maharashtra, : Raj Kapoor and Others Vs. State and Others, : V.C. Shukla Vs. State through C.B.I., : Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, and Rajan Kumar Manchanda v. State of Karnataka 1988 A CrC 54, held as follows:

Similarly, the order of the Sessions Judge in revision in cases under Sections 125, 133/138 and 145, Code of Criminal Procedure and against an order of discharge by the Magistrate cannot be interfered with by the High Court either in exercise of its revisional powers at the instance of the same party or suo motu or in the exercise of its inherent powers u/s 482, Code of Criminal Procedure for these are also some of the orders of the Sessions Judge which determined the dispute between the parties.

Applying the principle laid down by the Full Bench, the present petition is not maintainable.

Shri G.C. Saxena, learned Counsel for the applicant, has, however, submitted that in view of a recent pronouncement by Supreme Court in Sri Ganesh Narain Hegde v. Sri S. Bangarappa and Ors. JT 1955 (4) SC 124, the view taken by the Full Bench in H.K. Rawal (supra) is no longer a good law. Reliance has been placed on the following observations in Para 12 of the report:

While it is true that availing of the remedy of the revision to the Sessions Judge u/s 399 does not bar a person from invoking the power of the High Court u/s 482, Code of Criminal Procedure, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers.

It may be noticed that the Full Bench had been constituted in order to examine the correctness of an earlier decision of this Court in Khem Singh v. Nathu Ram Sharma 1978 All CrC 262. wherein petition u/s 482, Code of Criminal Procedure under such circumstances had been held to be maintainable, on account of subsequent decision of Supreme Court in Rajan Kumar Manchanda v. State of Karnataka 1988 ACC 54, wherein it was observed as follows:

The question for consideration is as to whether the bar u/s 397(3), Code of Criminal Procedure should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by Counsel appearing for the State that the move before the High Court was really an application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited u/s 397(3), Code of Criminal Procedure. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted, every revision application facing the bar of Section 397(3) of the Code could be labelled as one u/s 482. We are satisfied that this is a case where the High Court had no Jurisdiction to entertain the revision.

The same question has again been considered by the Supreme Court in Dharampal and others Vs. Smt. Ramshri and others, , which arose out of proceedings u/s 145, Code of Criminal Procedure. The petition u/s 482, Code of Criminal Procedure filed by the first Respondent had been allowed by the High Court after the revision preferred by her against the order of the Magistrate had been dismissed. Regarding the maintainability of the petition, the Supreme Court observed as follows:

Section 397(3) bars a second revision application by the same party. It is now well settled that the Inherent powers u/s 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st Respondent. On this short ground itself, the impugned order of the High Court can be set aside.

The aforesaid view has been reiterated in a recent decision rendered in Deepti alias Arati Rai Vs. Akhil Rai and Others, . The accused in this case had challenged the order of the Magistrate framing charge u/s 498A, I.P.C. by filing a revision but the same was dismissed by the learned Sessions Judge and thereafter he filed a petition u/s 482, Code of Criminal Procedure which was allowed by the High Court. Aggrieved by the aforesaid order, the complainant (wife) filed an appeal in the Supreme Court and the same was allowed and the judgment of the High Court was set aside with the following observation:

It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court, is not maintainable and that inherent power u/s 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. As we find that the order passed by the High Court is not legal and just it will have to be set aside.

If the decision of the Supreme Court in Ganesh Narain Hegde (supra) is closely examined, it would be apparent that the law laid down therein does not run counter to the decision of the Full Bench. In the said case, a charge u/s 500, I.P.C. was framed against the accused S. Bangarappa. After the revision against the order of the Magistrate was dismissed by the learned Sessions Judge, the accused filed a petition u/s 482, Code of Criminal Procedure which was allowed by the High Court and the charge was quashed. The complainant challenged the order of the High Court by filing an appeal in the Supreme Court and while dealing with the matter, the aforesaid observation relied upon by the learned Counsel for the applicant were made. It is important to note that while observing that the availing of remedy of revision before the learned Sessions Judge u/s 399, Code of Criminal Procedure did not bar a person from invoking the power of the High Court u/s 482, Code of Criminal Procedure, the Supreme Court further observed that the High Court should not act as a second revisional court under the garb of exercising inherent power and while exercising such powers, it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisionary power in the matter and should Interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of court or that the interest of justice otherwise calls for quashing of the charges. The general observation made in the opening part of the paragraph should not be read in isolation but should be read in the light of what has been stated subsequently. The real import of the observation that the High Court should not act as a second revisional court under the garb of exercising inherent powers should not be ignored. In Para 14, it was observed that the High Court had really gone beyond the purview of Section 482, Code of Criminal Procedure in quashing the charge.

Having considered the submission made by the learned Counsel, I am clearly of the opinion that the view taken by the Full Bench in H.K. Rawal v. Nidhi Prakash (supra) to the effect that if a revision against an order of conviction, discharge or an order in proceedings under Sections 125, 133, 138 and 145 has been dismissed, the petition u/s 482, Code of Criminal Procedure at the instance of the same party is not maintainable, is in conformity with all the four decisions of the Supreme Court and, therefore, it is still good law. The Full Bench has also held that the petition u/s 482, Code of Criminal Procedure would be maintainable in cases where the revision against an order of summoning or an order framing charge has been dismissed. This appears to be contrary to what has been held in Deepti alias Arati Rai Vs. Akhil Rai and Others, . However, I am not expressing any opinion on this question as it is not involved in the present case.

The present petition is, therefore, not maintainable and is, accordingly, dismissed. The stay order is vacated.