Surjit Kaur vs Harnek Singh

S.S. Grewal, J.—This petition u/s 492 of the Code of Criminal Procedure (hereinafter called the Code) relates to quashment of order dated 2.11.1988 (Annexure PI) whereby, the evidence of the petitioner who closed by the trial court.

In brief, facts of the case, are that application "for grant of maintenance u/s 125 of the Code has been filed by the petitioner against her husband. In that case, other evidence of the petitioner had been recorded and the clerk of the Punjab National Bank, Ludhiana remained to be examined. Process fee and died money of the witness was deposited by the petitioner. But the said witness was not summoned by the trial court, and the evidence of the petitioner was closed on the ground that last opportunity had been granted on the earlier date, for production of entire evidence by the petitioner.

On behalf of the respondent husband, a preliminary objection was raised that the impugned order being a purely interim/interlocutory, no revision petition is maintainable against such an order in view of the specific bar created by Section 397(2) of the Code. It was also contended on behalf of the respondent husband that the said bar cannot be overcome by merely invoking the inherent jurisdiction of the High Court u/s 397(2) of the Code.

The objection raised on behalf of the respondent, is, without, any merit. It has been conceded before me that the impugned order is an interim order and not a final order in the petition for grant of maintenance filed by the petitioner wife. Inherent power of the High Court recognized u/s 482 of the Code cannot be completely limited or, shut out by imposition of bar created u/s 397(2) of the Code.

Dealing with this aspect of this case, Lt was held in Madhu Limaye Vs. The State of Maharashtra, as under:

...But in case the impugned order clearly brings about a situation which is an abuse of the process of the court, or, for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit, or affect the exercise of the inherent power of the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously, or, as being without jurisdiction.

It was further observed in Madhu Limaye''s case (supra), as under:

That the bar will not operate to prevent the abuse of the process of the court and/or to secure the end of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter an appropriate Case under its inherent powers....

Following the authority in Madhu Limaye''s case (supra) it was observed in Raj Kapoor and Others Vs. State and Others, as under:

The inherent power of the High Court u/s 482 does not understand repelled when the revisional power u/s 397 overlaps. Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, when specific provision is made easy resort to inherent power is not right except under compelling circumstances.

Not that there is absence of jurisdiction but that inherent power should not invades areas set apart for specific power under the same code. There is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court''s jurisdiction. The limitation is self restraint, nothing more.

On behalf of the respondent husband reliance was placed on Rajan Kumar Machananda Vs. State of Karnataka, . On the basis of this authority it was contended on behalf of the respondent that statutory bar u/s 397(3) of the Code cannot be overcome by merely saying that the jurisdiction of the High Court in exercise of inherent powers is being invoked. Apart from the fact that only scope of bar u/s 397(3) of the Code considered in Rajan Manchanda''s case (supra), the point was conceded by the counsel appearing on behalf of the State that he move before the High Court was merely an application for revision of the order of the Magistrate releasing the truck. Both the authorities Raj Kapoor and Others Vs. State and Others, and Madhu Limaye Vs. The State of Maharashtra, referred to above were not brought to the notice of their Lordship in Rajan Kumar Manchanda''s case which relates to entirely different facts. The said authority is not applicable to the facts of the case in hand and is clearly distinguishable. The preliminary objection raised on behalf of the respondent husband thus cannot be legally sustained.

It was the bounden duty of the trial court to secure the presence of the witness who has been duly summoned on behalf of the petitioner. The clerk of the bank who had been duly summoned could not possibly be produced by the petitioner of her own. The trial court instead of securing the presence of the said witness closed the evidence of the petitioner by the impugned order (Annexure PI) which, in the circumstances of the case cannot be essential to exercise inherent power of this Court u/s 482 of the Code to secure the ends of justice.

For the foregoing reasons, the impugned order (Annexure PI) passed by the trial court is directed to secure the presence of summoned clerk of the concerned bank along with relevant record concerning the salary of the respondent husband to record his evidence and proceed in the case according to law. This petition is accordingly allowed.