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2005 DIGILAW 508 (KAR)

VENKATAPPA v. USHA RANI

2005-08-05

K.RAMANNA

body2005
ORDER This petition is filed under Section 482 of Criminal Procedure Code, 1973, being aggrieved by the order dated 31-7-2004 passed by the Additional Sessions Judge, Fast Track Court No. IV, Kolar, on I.A. filed under Section 311 of the Cr. P.C., whereby, the learned Sessions Judge has rejected the said application. Therefore, the petitioner herein has come up with this criminal petition mainly on the ground that the order passed by the Court in rejecting the application filed by him under Section 311 of the Cr. P.C., to permit him to adduce further evidence by producing the voter list is illegal and incorrect. The Revisional Court has got wide powers like an Appellate Court including the power to take additional evidence and documents. If the said documents are very much required to decide the issue, it is the further contention of the petitioner that the first respondent married one Sheriff. But the Trial Court namely the learned Magistrate, wrongly assessed the evidence. The Revisional Court has not entertained the application seeking permission to adduce additional evidence which was not filed at that time and the evidence is most relevant to prove the points/issues 1 to 3. Hence, this petition. 2. The brief facts leading to this case are that the respondents filed petition under Section 125 of the Cr. P.C., for grant of maintenance before the Judicial Magistrate First Class, KGF in CMC No. 53 of 1997. After considering the legal evidence, the learned Magistrate has allowed the petition filed by the respondents vide order dated 18-7 -2002 directing this petitioner to pay maintenance at the rate of Rs. 500/- p.m. to each of the respondents and respondents 2 and 3 are eligible to recover the maintenance at the said rate from the date of the petition till their attaining majority. Since the petitioner has denied the relationship with respondent 1 as his wife and the children born to him and the respondent 1 belongs to a Mohammedan Community, her name is Noorjahan the wife of one Sheriff S/o Fakruddin and the Sheriff has got the children namely as Yaza Pasha and Faiz Pasha through the 1st respondent. His further contention is that he married one Lakshmi Devamma. Inspite of that, the Magistrate has wrongly appreciated the evidence and allowed the CMC No. 53 of 1997 directing him to pay maintenance at the rate of Rs. His further contention is that he married one Lakshmi Devamma. Inspite of that, the Magistrate has wrongly appreciated the evidence and allowed the CMC No. 53 of 1997 directing him to pay maintenance at the rate of Rs. 500/- p.m. to each of the respondents 1 to 3. Assailing the said order, he filed a Criminal Revision Petition No. 172 of 2002 on the file of the Additional Sessions Judge, Fast Track Court No. IV, Kolar. During the pendency of the said criminal revision petition, the petitioner has filed an application under Section 311 of the Cr. P.C. requesting the learned Fast Track Court to recall the petitioner and permit him i.e., R.W. 1 to adduce the further evidence by producing the certified copy of the voters list pertaining to Chikkaballapur Assembly segment to prove that first respondent is the wife of Sheriff S/o Fakruddin and the said Sheriff has a children by name Yaza Pasha and Faiz Pasha. But his prayer has been rejected by the learned Sessions Judge by dismissing the I.A. which is a violation of Principles of natural justice. Hence, this petition. 3. Heard the arguments of the learned Counsel for the petitioner and the learned Counsel for the respondents. 4. The undisputed facts are that the petitioner herein M. Venkatappa is working as Village Accountant in Taluk Office. The petitioner herein filed Criminal Revision Petition No. 172 of 2002 against the order passed by the Judicial Magistrate First Class, Kolar in CMC No. 53 of 1997. When the revision petition was pending before the Fast Track Court, Kolar, the petitioner herein filed I.A. No. 2 under Section 311 of the Cr. P.C., to recall him (R.W. 1) to adduce from the evidence by producing the documents. 5. After hearing both the parties, the learned Judge has rightly rejected the said I.A. after considering the grounds urged. In fact, the respondents herein have filed an application under Section 125 of the Cr. P.C., for grant of maintenance on the ground that the petitioner herein being the husband of first respondent neglected to maintain her and her children which came to be proved. Accordingly, the petition under Section 125 of the Cr. P.C., came to be allowed. When the said revision petition was set down for hearing the arguments, the petitioner herein filed an application under Section 311 of the Cr. Accordingly, the petition under Section 125 of the Cr. P.C., came to be allowed. When the said revision petition was set down for hearing the arguments, the petitioner herein filed an application under Section 311 of the Cr. P.C., to permit him to adduce further evidence, in order to show that he could not produce the documents during the pendency of the petition on the file of the Judicial Magistrate First Class, KGF. According to Section 311 of the Cr. P.C., at any stage of the enquiry, trial or other proceedings under Criminal Procedure Code, the parties are permitted to adduce further evidence. It is contended by the learned Counsel for the petitioner when CMC No. 53 of 1997 was pending, he could not produce the certified copy of the Voters List to show that the first respondent is the wife of one Sheriff s/o Fakruddin and that she gave birth to two male issues namely, Yaza Pasha and Faiz Pasha. According to him, he married one Lakshmidevamma but not respondent 1. His contention is that he could not secure those documents when the case was pending before Judicial Magistrate First Class, KGF. Therefore, he filed I.A. to permit him to adduce further evidence by allowing the petition filed under Section 482 of the Cr. P.C. 6. In support of his contentions, the learned Counsel for the petitioner relied upon the decision in Ramakantha Khadigar v. State1, therein the said Court held that: "Criminal Procedure Code, 1898, Sections 439(1) and 428 Powers of Court of revision to take additional evidence. Under Section 439(1) of the Criminal Procedure Code, 1898, a Court of revision has all the powers of an Appellate Court including the power to take additional evidence under Section 428 of the Cr. P.C.". He has also relied on another decision of this Court in Natabar Behera v. State1, wherein it is held as under: "Under Section 428(1) of the Cr. P.C. in dealing with any appeal. He has also relied on another decision of this Court in Ramakantha Khadigar v. State, AIR 1957 Cri. P.C.". He has also relied on another decision of this Court in Natabar Behera v. State1, wherein it is held as under: "Under Section 428(1) of the Cr. P.C. in dealing with any appeal. He has also relied on another decision of this Court in Ramakantha Khadigar v. State, AIR 1957 Cri. 10, wherein it is held as under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Sessions or a Magistrate. The Revisional Court has been vested with powers to take additional evidence under Section 439(1) of the Criminal Procedure Code, 1898". He has further relied on a decision in 2004 Cri. L.J. NOC 303 (Ori.), wherein it has been held that: "Section 125 of the Cr. P.C. (2 of 1974) - Maintenance Grant of - Petitioner denying marriage between him and opposite party to whom maintenance was granted - Witnesses examined on behalf of alleged wife stated nothing about any ritual taking place in course of marriage - Alleged Barbar present in marriage - Not examined - No evidence to support fact that there was marriage between parties - Therefore direction for payment of maintenance - Not proper". In another decision relied upon by him in the case of Smt. Yamunabai Anantrao Adhaw v. Anantrao Shivram Adhav and Another2, it has been held that: "The expression "wife" used in Section 125 of the Code should be interpreted to mean only a legally wedded wife. The word "wife" is not defined in the Code except indicating in the Explanation to Section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rights with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Section 125 of the Code". 7. The marriage of a woman in accordance with the Hindu rights with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of Section 125 of the Code". 7. The learned Counsel for the respondent relied upon the unreported decision of this Court in case of Siddagouda Bhimagouda Desai v. Rekha Siddagouda Desai1. In the present case, when the marriage between the parties is challenged by the petitioner-husband, the petitioner ought to have proved that his marriage took place with one Laxmidevamma. The 1st respondent who is a Muslim and her marriage was solemnized with Sheriff S/o Fakruddin is incorrect. Further, it is contended that the strict proof of marriage is not required in case of this nature. It is sufficient if respondents prima facie material evidence before the Court that claimant/respondent and her husband lived a husband and wife. In support of this contention, he has relied upon the decision of the Apex Court in Dwarika Prasad Satpathy v. Bidyut Praya Dixit and Another2, held that: "The validity of the marriage for the purpose of summary proceedings under Section 125 of the Cr. P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of the Indian Penal Code, 1860. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu rights in the proceedings under Section 125 of the Cr. P.C. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 of the Cr. P.C. which are of a summary nature, strict proof of performance of essential rights is not required". P.C. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 of the Cr. P.C. which are of a summary nature, strict proof of performance of essential rights is not required". He also relied upon a decision in Phirari Singh v. State3: "Criminal Procedure Code, 1974, Section 125 - Maintenance - Grant of - Factum of marriage not established - Application under Section 125 not maintainable". 8. On the other hand the learned Counsel for the respondents submitted that the petitioner has utterly failed to prove his contentions before the Magistrate by producing the alleged documents. Therefore, application filed by him under Section 311 of the Cr. P.C., before the Revisional Court is not at all maintainable. The Revisional Court 'is expected to examine whether the order passed by the Trial Court is in accordance with law or not? If so whether the order is incorrect and illegal and calls for any interference? But the petitioner without arguing the main case and to protract the revision petition which was pending on the file of the Trial Court, filed an untenable application in 1998 before the Fast Track Court. Moreover, the petition filed by him under Section 482 of the Cr. P.C., is not at all maintainable as there is no abuse of the process of Court and hence he prays to dismiss the petition. 9. Having heard the arguments, the point that arises for consideration is whether the order under challenge passed by the Judge, Fast Track Court is incorrect and bad in law in not permitting the petitioner to produce the documents and to adduce further evidence? 10. The scope of Section 397 of the Cr. P.C. is very limited. When there is a specific provision in Cr. P.C., the Revisional Court cannot invoke such power under Section 397. There is no provision in Cr. P.C., to direct the Trial Court to reopen the case and to permit both the parties to adduce evidence. If the application filed by the petitioner seeking production of certain documents during the pendency of the CMC No. 53 of 1997 has been rejected by the Magistrate, then such contention can be raised by the petitioner in the revision. P.C., to direct the Trial Court to reopen the case and to permit both the parties to adduce evidence. If the application filed by the petitioner seeking production of certain documents during the pendency of the CMC No. 53 of 1997 has been rejected by the Magistrate, then such contention can be raised by the petitioner in the revision. But in this case the petitioner challenging the order of maintenance directing him to pay maintenance at the rate of Rs. 500/- p.m. to each of the respondents. Therefore, he cannot agitate his grievance by filing an application under Section 311 of the Cr. P.C., before the High Court under Section 397. Even if the petitioner could not secure the documents and adduce evidence before the Trial Court during enquiry, he cannot be permitted to adduce the further evidence during the pendency of the proceedings before the Revisional Court. When the case was posted for hearing the arguments of both parties in the revision petition, the petitioner sought for to recall the petitioner (R.W. 1) to adduce evidence by producing the certified copy of voter's list for the year 2002. It is seen that the petitioner is working as a Village Accountant in Taluk Office. It would not have become very difficult for him to secure the voters list from the Tahsildar office to produce them before the Court. His main contention is that he married one Lakshmidevamma and she is his legally wedded wife but not the first respondent. 11. Viewed from any angle, I do not find any reasons to interfere with the impugned order passed by the Fast Track Court. When the first respondent placed sufficient evidence to prove that she is the legally wedded wife and the respondent 2 and her children born through him, then it is the duty of the petitioner that the first respondent hails from Muslim Community and she married to one Sheriff, S/o Fakruddin before the Judicial Magistrate First Class, KGF since he failed to adduce the evidence when the CMC was pending. The learned Judicial Magistrate First Class, KGF, is right in allowing the maintenance application filed by the respondents 1 to 3 by an order dated 18-7-2002. The learned Judicial Magistrate First Class, KGF, is right in allowing the maintenance application filed by the respondents 1 to 3 by an order dated 18-7-2002. So during the pendency of the maintenance petition, the petitioner fails to produce those documents and the statement of objections filed by the petitioner before the Magistrate do not disclose that 1st respondent is the wife of one Sheriff S/o Fakruddin and respondents 2 and 3 are the children born through Sheriff. Therefore, viewed from any angle, the learned Sessions Judge rightly dismissed the interlocutory application filed by the petitioner. 12. Hence, present criminal petition filed by the petitioner under Section 482 of the Cr. P.C. is not at all maintainable and same is liable to be dismissed and accordingly it is dismissed as there is no abuse of the Court.