MURALIDHARAN v. S. SUBBAIAH — 1993 DIGILAW 562 (MAD)

Judgment :- S.M. ALI MOHAMED, J. ( 1 ) THIS is a petition under section 482, Cr. P. C. , to set aside the order in Criminal Revision Petition No. 23 of 1986 dated 1. 12. 1986 on the file of Sessions Judge, Pudukottai confirming the order in Cr1. M. P. No. 11 of 1984 dated 22. 5. 1986 of the Chief Judicial Magistrate, Pudukottai, filed by the petitioner for maintenance under Section 125, Cri. P. C. The petition under section 125, Cr. P. C. , was filed on behalf of Muralidharan, minor represented by his mother and natural guardian G. Savlthiri for maintenance of the minor for a sum of Rs. 500/per month. It is averred in the petition under Section 125, Cr. P. C. , that the petitioner Muralidharan (Minor) aged about 1-Y2 years represented by his mother and natural guardian Savithiri staff nurse, is wife of B. Subbiah (respondent), she is entitled for the maintenance of the minor son. It is averred in the petition as follows The petitioner is the minor son of the Respondent. The petitioners mother G. Savithiri was married to the respondent on 25. 5. 1979 at Thirugokarnam Murugan Temple, Pudukottai, according to Hindu Rites and Custom. Afterwards the petitioners mother and the respondent were living together as husband and wife. As a result of the said wedlock, the petitioner was born on 16. 4. 1982 at Doctor V. Balamani Nursing Home at Pudukottai. The birth of the petitioner has been registered with the Registrar of Birth and Deaths, Pudukottai Municipality with the registration No. 79/82. The petitioner is producing herewith the Xerox copy of the birth certificate. ( 2 ) THE respondent was looking after the con forts and needs of the petitioner only for a period of about 6 months after the birth of the petitioner. The respondent neglected the petitioner with effect from the month of November, 1982. The petitioner reliably understand that the reason for such neglect is that the Respondent has subsequently married another woman by name Vasantha and is living with her. ( 3 ) THE petitioner is now aged about 2-1/2 years only. The petitioner is presently under the case and custody of his mother G. Savithiri the natural guardian. Presently the petitioner is maintained by his mother the said G. Savithiri. ( 3 ) THE petitioner is now aged about 2-1/2 years only. The petitioner is presently under the case and custody of his mother G. Savithiri the natural guardian. Presently the petitioner is maintained by his mother the said G. Savithiri. ( 4 ) THE petitioner being minor only aged about 2-1/2 years is unable to maintain himself. The respondent a leading doctor at Pudukottai is in an affluent position and is leading a very comfortable, sophisticated and most luxury life. Besides his salary from the Government the Respondent is having its vast private medical practice. The respondents net income per month would not in any case be less than Rs. 10,000/ (Rupees ten thousand per month ). Apart from that the respondent is having several lakhs of worth both immoveable and moveable properties. The respondent is having sufficient means to maintain the petitioner. ( 5 ) THE Respondent is wilfully, and want only neglecting the petitioner. Under Law, the respondent is liable to maintain the petitioner. But the respondent is deliberately neglecting the petitioner and is not looking after his comforts and needs. Though the respondent can easily pay a sum of Rs. 2,000/-as maintenance to the petitioner because of the limits laid down within the provisions under Section 125, Cr. P. C. , the petitioner is restricting his claim to a sum of Rs. 500/-per month. Therefore, the respondent is liable to pay maintenance at the rate of Rs. 500/-per month from this date onwards to the petitioner. The learned Chief Judicial Magistrate, Pudukottai, has dismissed the petition on 5. 5. 1986. Against the order of dismissal, she preferred a revision before the Sessions Judge, Pudukottai, in Cr. R. C. No. 23 of 1986 and that was also dismissed on 1. 12. 1986, aggrieved by the order, the petitioner has filed this Cr1. Revision Petition under Section 482, Cr. P. C. The learned counsel for the respondent has taken a preliminary objection regarding the maintainability of this petition. He contends that there is a bar under section 397 (3) Cr. P. C. , for entertaining an application under Section 482, Cr. P. C. In support of the said contention, he has cited the ruling of the Supreme Court reported in Rajan Kumar Machananda v. State of Karnataka, wherein the Supreme Court held as follows: Heard learned counsel for the parties. P. C. , for entertaining an application under Section 482, Cr. P. C. In support of the said contention, he has cited the ruling of the Supreme Court reported in Rajan Kumar Machananda v. State of Karnataka, wherein the Supreme Court held as follows: Heard learned counsel for the parties. The respondent State had challenged the order before the Court of Sessions when the learned Magistrate before whom the matter was proceeding directed release of the truck in favour of the appellant. The Revisional Court dismissed the petition of the State. A second Revision did not lie at the instance of the State to the High Court in view of the provisions of Section 397 (3), Cr. P. C. Obviously, to avoid this bar, the application moved by the State before the High Court was stated to be under Section 432, Cr. P. C. , asking for exercise of inherent powers. In exercise of that power, the High Court has reversed the order of the Magistrate as affirmed by the/sessions Judge. The question for consideration is as to whether the bar under section 397 (3), Cr. P. C. , should have been taken note of to reject the revision at the instance of the State Government of 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 on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited under section 397 (3), Cr. P. C. Merely by sawing that the jurisdiction of the High Court for exercise of is 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 labeled as one under section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain in the revision. The appeal is allowed and we set aside the order of the High Court. The order of he Magistrate as affirmed by the Session Judge is upheld. We are satisfied that this is a case where the High Court had no jurisdiction to entertain in the revision. The appeal is allowed and we set aside the order of the High Court. The order of he Magistrate as affirmed by the Session Judge is upheld. T He has also cited the ruling reported in Dharampal v. Ramshri, wherein the Supreme Court has held as follows: The question that falls for our consideration now is whether the High Court could have utilised the powers under section 482 of the Code and entertained a second revision-application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397 (3) bare a second revision application by the same party. It is now well settled that the inherent powers under section 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. He has also cited the ruling reported in Pathumma v. Muhammad, wherein the Supreme Court has observed as follows: The questions whether appellant 1 was the married wife of the respondent and whether appellant 2 was the legitimate or illegitimate child of the respondent, are preeminently questions of fact. The learned Magistrate after considering the evidence, so adduced by the parties, held that appellant 2 was not the wife of the respondent. He further held on the basis of the evidence on record that appellant 2 was the illegitimate child of the respondent. We are afraid, the learned Judge of the High Court committed an error in making a re assessment of the evidence and coming to a finding that appellant 2 was not the illegitimate child of the respondent. We have ourselves considered the evidence on record and we agreed with the learned Magistrate, who had taken much pains in analysing the evidence, that appellant 2 was the illegitimate child of the respondent. We have ourselves considered the evidence on record and we agreed with the learned Magistrate, who had taken much pains in analysing the evidence, that appellant 2 was the illegitimate child of the respondent. The High Court in its revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on a question of fact. On the other hand, the learned counsel for the petitioner submitted that in view of the above Supreme Court rulings, he is not in a position to challenge the legal contentions of the respondent. Further, he submitted that the question whether the minor is the legitimate son of the respondent or not is always left open to be decided in Civil suit and liberty may be given to the parties concerned to agitate the matter in the Civil suit. In view of the above Supreme Court rulings, I am of the view that the petition under section 482, Cr. P. C. , is not maintainable. Accordingly, the petition is dismissed. However, it is observed that it is always open to the mother and guardian of the minor Muralidharan viz. , G. Savithiri to take appropriate civil proceedings to prove her marriage and for claiming maintenance of the minor. With the above observation, the petition is dismissed. Petition dismissed as not maintainable.