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1998 DIGILAW 261 (ORI)

SRI RABINDRA CH. RAY v. MAMATARANI SAMAL

1998-08-10

P.K.TRIPATHY

body1998
JUDGMENT : P.K. Tripathy, J. - 10. 8. 1998 - Heard. 2. On consent of both the parties, the above noted two revisions are disposed of at the stage of hearing on admission by this common order. 3. The opp. party in Crl Case No. 132/89 u/s 125, Cr.P.C. of the Court of J.M.F.C., Bhadrak, has preferred these two Revisions, i.e., Crl. Revision No. 213 of 1997 and Crl. Revision No. 520 of 1997. In Crl. Revision No. 213 of 1997 he has challenged the order dated 17.4.1997 passed by the learned Addl. Sessions Judge, Bhadrak in Crl. Revision No. 60 of 1993, In Crl. Revision No. 520 of 1997 he has challenge the order dated 21.10.1997 passed by learned S.D.J.M., Bhadrak in Misc.Case No. 61 of 1995 u/s 128, Cr.P.C. 4. The facts which are relevant for the present purpose are noted herewith. Petitioner is the husband of the opposite party. Her case u/s 125, Cr.P.C. was that petitioner was an impotent and when she pointed out that fact, she was assaulted and was driven out. According to the opposite party, the petitioner having extra marital relation with others, deserted him and went and stayed with one Prasanta Patra. They are living as husband and wife and have begot a child. Both the parties contested the case and adduced evidence. On assessment of such evidence, learned S.D.J.M. allowed the claim for maintenance and granted her monthly maintenance @ Rs. 250/- per month. Thus, petitioner has approached the Addl. Sessions Judge, Bhadrak u/s 397, Cr.P.C. and that application has been registered as Criminal Revision No. 60/93. In that Revision, petitioner filed two documents, i.e., a Voter List and a School Admission Register in support of his stand that the opposite party has led conjugal life with that Prasanta Patra. Though initially there was contention on behalf of the opposite party that the Revisional Court has no authority or power to accept additional evidence, but in view of the ratio in the case of Vinod Kumar v. Smt. Mohrawati 1990 CLJ 2068, learned Addl. Sessions Judge accepted the legal position that Revisional Court has the power and jurisdiction to accept additional evidence. However, he rejected the petition filed by the petitioner on the ground that those documents are not relevant. 5. Sessions Judge accepted the legal position that Revisional Court has the power and jurisdiction to accept additional evidence. However, he rejected the petition filed by the petitioner on the ground that those documents are not relevant. 5. Learned Counsel for the petitioner in that connection states that in view of the plea advanced by the petitioner in his show-cause, the decision of the learned Addl. Sessions Judge is not only incorrect but also premature and that without affording an opportunity to the petitioner to prove such documents it should nto be rejected in limine. Learned Counsel for the opposite party has no convincing reply to that argument. Thus, the contention of the petitioner being reasonable, and since learned Addl. Sessions Judge without properly examinign the matter, has whimsically rejected the petition for additional evidence, the impugned order dated 17.4.1987 of the Addl. Sessions Judge, Bhadrak is set aside. He is direced to accept those documents as additional evidence, and unless exhibited on admission or without objection, permit the petitioner to prove the same in accordance with law and also allowing the opposite party to adduce rebuttal evidence, if any. It is open to learned Addl. Sessions Judge to record such evidence or direct the Magistrate to record such evidence and to record further finding or fresh finding on that basis. 6. Criminal Revision No. 213 of 1997 is accordingly allowed. 7. During the pendency of the aforesaid Crl. Revision No. 60 of 1993 in the Court of Addl. Sessions Judge, and Crl. Revision No. 213 of 1997 in this Court, the opposite party filed application u/s 128, Cr.P.C. which has been registered as Misc. Case No. 61 of 1995 in the Court of S.D.J.M., Bhadrak. The Revision-petitioner appeared and filed objection, challenging to the execution of the order of maintenance on the grounds that Revision Applications were pending in the Court of Addl. Sessions Judge as well as in High Court, and that, opposite party being residing with one Prasant Patra, has made herself disentitled to claim for maintenance in view of the provision u/s 125(4), Cr. P.C. learned S.D.J.M. has rightly rejected that contention in the absence of any stay order by the Revisional Courts, and in the absence of proper petition either u/s 125(4), Cr.P.C. or u/s 127, Cr.P.C. The legal position is well settled that Section 128, Cr.P.C. is merely supplementary to Section 125(3), Cr. P.C. learned S.D.J.M. has rightly rejected that contention in the absence of any stay order by the Revisional Courts, and in the absence of proper petition either u/s 125(4), Cr.P.C. or u/s 127, Cr.P.C. The legal position is well settled that Section 128, Cr.P.C. is merely supplementary to Section 125(3), Cr. P.C. which provides for endorsement of order after being satisfied about the identity of the parties and non-payment of the maintenance. If an order for maintenance has been made by a Magistrate, its effect and enforceability can only be stopped by another statutory order and until then such order is executable. See 1979 CLJ 198, Bhupinder Singh v. Daljit Kaur. 8. Hence, the order dated 21.10.1997 passed by learned D.S.J.M., Bhadrak is not liable to be interfered with at present. 9. At this stage the learned counsel for the petitioner states that in view of the above order in Crl. Revision No. 213/97 at least the execution of the order of maintenance may be stayed. Learned counsel appearing for the opp. party seriously opposes to the same. Keeping in view the aforesaid facts and submission it is ordered that until disposal of the matter by the Revisional Court or by the trial Court in the event of remand of the Crl. Misc. Case No. 132 of 1989 for recording of additional evidence and findings thereon, the petitioner shall deposit a sum of Rs. 250/- per month in the Court of S.D.J.M. or in any other Court as per the direction of the S.D.J.M. and the opposite party may be allowed to withdraw the same, if she will execute an undertaking/ bond with one solvent surety to the satisfaction of learned S.D.J.M. with the stipulation that she would refund the said amount if the result of the litigations between the parties will so require or if there shall be any such specific order from Courts of competent jurisdiction. It is needless to point out that such amount shall be adjusted towards the maintenance dues of the petitioner if ultimately the opposite party retains the maintenance order in her favour. In view of the above direction, the proceeding u/s 128, Cr. P.C. shall remain stayed until disposal of the case after acceptance of the additional evidence, as per the order in Criminal Revision No. 213 of 1997. In view of the above direction, the proceeding u/s 128, Cr. P.C. shall remain stayed until disposal of the case after acceptance of the additional evidence, as per the order in Criminal Revision No. 213 of 1997. However, in the event of the default in depositing the monthly maintenance as per the aforesaid order, the above stay order shall automatically stand vacated and learned Magistrate shall proceed with u/s 128, Cr. P.C. proceeding in accordance with law.