Rajbir vs Smt. Usha Devi

Sarojnei Saksena, J.—Petitioner''s counsel contends that the Respondent filed a petition u/s 125 Code of Criminal Procedure which was dismissed by the trial Court holding that as she is living in adultery with one Kishan Lal, she is not entitled to recovery maintenance from the Petitioner. She filed revision against that order. In the revisional Court she filed a copy of the judgment of the matrimonial Court dated November 3, 1989. He contends that by the impugned order the revisional Court permitted her to file this document as an additional evidence u/s 397 Code of Criminal Procedure The revisional Court was not competent to allow production of any additional evidence. He has relied on In Re: K.V.R.S. Mani, and Mohanlal Shamji Soni v. Union of India and Anr. 1991 (3) RCR 182.

Respondent''s counsel contends that in this matrimonial case vide judgment dated November 3, 1989, matrimonial Court has negatived the Petitioner''s plea that the Respondent is living in adultery with one Kishan Lal. To substantiate her this argument that the learned Magistrate has fallen into an error in giving a finding too that effect, the copy of that judgment was filed. It is settled law that finding given in a matrimonial case is binding on the criminal Court. Hence no infirmity can be found with the impugned order.

Section 397(1) Code of Criminal Procedure gives jurisdiction to the Sessions Court to examine the record of any proceeding before any inferior Criminal Court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding recorded and as to the regularity of any proceeding of such inferior Court, and may call for such record. Section 399 Code of Criminal Procedure empowers a Sessions Judge exercising revisional jurisdiction to exercise powers u/s 401(1) Code of Criminal Procedure Section 401(1) Code of Criminal Procedure lays down that in case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 390 and 391. ...Section 391 empowers the Appellate Court, if it thinks additional evidence to be necessary, after recording its reasons, it may take such evidence itself or direct it to be taken by a Magistrate. Thus, it is apparent that the Sessions Court while hearing a revision is empowered u/s 401(1) read with Section 391(1} Code of Criminal Procedure to accept any additional evidence if he considers it to be necessary and that can be done after recording the reasons for taking such evidence on record. By the impugned order the revisional Court has allowed the Respondent to produce the copy of the judgment for the reasons mentioned therein. In view of this legal position, no illegality or irregularity can be found with the impugned order.

Hence, this Criminal Revision, being meritless, is dismissed.