Iswar Chandra Naik vs Allahadini Sahu (Naik) and Another

G.B. Patnaik, J.—The revisional order of the learned Additional Sessions Judge, Bolangir, in Criminal Revision No. 40/2 of 1993 dismissing the petitioner''s revision arising out of a proceeding u/s 125 of the Code of Criminal Procedure is sought to be assailed in this application by invoking the inherent power of the Court u/s 482 of the Code. The main ground of attack is that the learned Magistrate as well as the learned Additional Sessions Judge committed an error in recording a finding that the Opp. Party are the wife and son of the petitioner respectively.

On the petition of Opp. Party No. 1 for self and for Opp. Party No. 2 u/s 125 of the Code of Criminal Procedure claiming maintenance from the petitioner alleging that said Opp. Party No. 1 had married the petitioner on 23.2.1986 according to the Hindu rites in a Shiva temple and Opp. Party No. 2 was born out of their wedlock and that the petitioner is neglecting to maintain them, the petitioner appeared before the Magistrate and denied the factum of marriage. He also denied that Opp. Party No. 2 is his son. The learned Magistrate recorded evidence of witnesses of both parties and on a thorough scrutiny of the same came to the conclusion that Opp. Party No. 1 is the legally married wife of the petitioner and Opp. Party No. 2 was born out of their wedlock. He further found that the petitioner wilfully neglected to maintain them and on the basis of the income of the petitioner awarded maintenance at the rate of Rs. 150/- per month in favour of each of the Opp. Parties. The petitioner challenged the said order in revision before the learned Sessions Judge which was heard by the Additional Sessions Judge, Bolangir. The main contention raised by the petitioner before the learned Additional Sessions Judge was that the conclusion of the Magistrate is based upon erroneous appreciation of the evidence and the said conclusion, therefore, must be interfered with. The Revisional Court in view of the contention raised re-appreciated the evidence and affirmed the conclusion of the Magistrate and held that the petitioner and Opp. Party No. 1 lived together as man and wife and Opp. Party No. 2 was born to this union. So far as the quantum of maintenance is concerned, the Revisional Court also took into account the income of the petitioner whose monthly income was Rs. 2000/- from his salary and held that the amount of maintenance granted by the Magistrate cannot be said to be excessive in any manner. The said revision having been dismissed, the petitioner has invoked the jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, since a second revision at the instance of the petitioner is barred u/s 397(2) of the Code.

Mr. Nanda appearing for the petitioner contends that the finding of the forums below to the effect that Opp. Party No. 1 is the legally married wife of the petitioner is a perverse finding on the face of it and, therefore, there will be a gross miscarriage of justice if the finding is not interfered with and on the other hand, the order of maintenance granted in favour of the Opp. Parties on that basis is sustained. Mr. Pujari appearing for the Opp. Parties on the other hand, contends that the inherent power of this Court should not be invoked where the statute itself prohibits as second revision at the instance of the petitioner. He further contends that even if the power could be exercised, but in the facts and circumstances of the present case, when the Forums below on appreciation of evidence have recorded a finding that Opp. Party No. 1 is the legally married wife of the petitioner and Opp. Party No. 2 is born out of their wedlock, such a finding cannot be interfered with by re-appreciating the evidence even though this Court may come to that conclusion independently.

In view of the rival contentions at the Bar, the first question that arises for consideration is whether a statutory bar u/s 397(2) of the Code for entertaining a second revision at the instance of the petitioner would operate as a bar for exercise of inherent power of this Court u/s 482 ? Mr. Pujari in this connection relies upon the decision of the Supreme Court in the case of Dharampal and others Vs. Smt. Ramshri and others, , which supports Mr. Pujari''s contention fully. In the aforesaid case, their Lordships of the Supreme Court held :

"......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 instances of 1st respondent......."

In that case also, the order of the Magistrate as well as the order of the Sessions Judge in revision was found to be patently erroneous and the High Court had interfered with that order in exercise of power u/s 432, but the Supreme Court came to the conclusion that the High Court should not have interfered with the order in exercise of power u/s 482 of the Code of Criminal Procedure.

Mr. Nanda, the learned Counsel appearing for the petitioner, however, contends that the aforesaid decision has not taken note of the earlier decision of the Supreme Court in the case of Madhu Limaye Vs. The State of Maharashtra, , which had categorically stated that the bar u/s 397(2) cannot limit or affect the exercise of inherent powers u/s 482 of the Code. Obviously that observation has been made in relation to the question whether, in respect of an interlocutory order, the High Court would be justified in exercising its inherent power, when it is not entitled to entertain a revision and the decision is not directly in relation to the bar u/s 397(2). But even if the ratio of that decision applies in respect of entertaining a second revision against the revisional order, but still in view of the parameters fixed by the Apex Court with regard to the circumstances where the inherent powers could be exercised, the present case would not be one for exercise of said power. As has been held in a catena of cases, the inherent power of the High Court should be exercised sparingly in rare and exceptional cases only when the Court comes to a conclusion that there has been gross illegality committed by the Forums below which has caused gross miscarriage of justice. The contention of Mr. Nanda appearing for the petitioner is that the finding of the two Forums below that Opp. Party No. 1 is the legally married wife of the petitioner as unsustainable as the evidence has not been properly weighed. I am afraid, it should not be within the exceptional cases for exercise of inherent power by this Court. It has been held by this Court in the case of Rabindra Biswal Vs. Hemalata Biswal and Others, , that in a petition u/s 125 of the Code of Criminal Procedure filed by the wife, the Courts having arrived at a concurrent finding regarding her marriage with the petitioner-husband, jurisdiction u/s 482 of the Criminal Procedure Code cannot be invoked to disturb that finding. To the same effect is the judgment of the Bombay High Court in the decision reported in (1985) 2 CLR 42 (Bom.) and the judgment of the Madras High Court in the decision reported in (1990) 3 Crimes 706 (Mad.). When the Magistrate as well as the learned Additional Sessions Judge on appreciation of evidence has recorded a finding that Opp. Party No. 1 is the wife of the petitioner and Opp. Party No. 2 was born out of their wedlock, it would not be proper for this Court to interefere with the said finding in exercise of its inherent power u/s 482 of the Code. It would be appropriate for me to notice the observations of the Supreme Court in a matter where maintenance had been ordered in the case of Smt. Dukhtar Jahan Vs. Mohammed Farooq, . In the case the question for consideration was whether the child claiming maintenance was legitimate or not and the Lower Courts had concurrently found about the legitimacy of the child. The High Court, however, had interfered with the same by invoking its power u/s 482 of the Code of Criminal Procedure. The Supreme Court had observed that even if the High Court was entitled to interfere with the said finding, yet it should have sustained the order or maintenance and directed the husband to seek an appropriate declaration in the Civil Court after a full-fledged trial that the child was not born to him. In view of the aforesaid observation of the Apex Court and in view of the findings arrived at in the present case, I do not find any merit in this application for interference by this Court in exercise of inherent power u/s 482 of the Code of Criminal Procedure.

This application accordingly stands dismissed.