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Allahabad High Court · body

2010 DIGILAW 262 (ALL)

VIJENDRA SINGH v. STATE OF U. P.

2010-01-22

VIRENDRA SINGH

body2010
Judgment Hon’ble Virendra Singh, J.—Revisionist Vijendra Singh preferred this revision against the order dated 27.5.2002 passed by the Additional District Judge IInd (Fast Track Court) Aligarh in Criminal Revision No. 299 of 2001, Smt. Sushila Devi v. Vijendra Singh and others, in which the learned lower Court has set aside the dismissal order dated 17.3.2001 passed by IInd Additional Civil Judge (Junior Division), Aligarh, passed on an application under Section 125, Cr.P.C moved by the respondent seeking maintenance and awarded a sum of Rs. 800/- per month as maintenance amount to the respondent. 2. The learned counsel for the revisionist contended that the respondent No. 2 had filed an application under Section 125, Cr.P.C against the revisionist on 16.1.1997 before the Judicial Magistrate IIIrd, Aligarh, in which the revisionist had filed an objection on 7.4.1999 thereby denying the allegation of the application and further stated that the respondent No. 2 was not ready to reside in the village of the revisionist and she had pressurised the revisionist to reside in her Maika or in the city at Aligarh, for which the revisionist was not inclined. The respondent had ever used to go to her Maika without giving any information to the revisionist. The revisionist had given a registered notice on 16.12.1996 to the respondent No. 2 residing in her Maika requesting her to reside with him but she did not return back to his house. It is also contended on behalf of the revisionist that the learned lower Court on perusal of the evidence of both the parties on record had rejected the application of respondent No. 2 seeking maintenance as per provisions under Section 125, Cr.P.C. The respondent No. 2 preferred a revision before the Session Judge, Aligharh against the order passed by the learned Magistrate. The Additional Sessions Judge IInd (Fast Track Court) Aligarh allowed the revision of the respondent No. 2 erroneously because the trial Court after appreciating the evidence on record had rejected the application of opposite party No. 2 and the learned revisional Court arbitrarily passed the impugned order thereby allowing Rs. 800/- per month as maintenance to the respondent No. 2 thereby ignoring the facts that despite the best effort of the revisionist that the respondent No. 2 should reside with the revisionist, the respondent No. 2 deliberately ignored and refused to live with the revisionist. 4. 800/- per month as maintenance to the respondent No. 2 thereby ignoring the facts that despite the best effort of the revisionist that the respondent No. 2 should reside with the revisionist, the respondent No. 2 deliberately ignored and refused to live with the revisionist. 4. No one is appeared on behalf of respondent No. 2. Learned A.G.A is present on behalf of State, respondent No. 1. 5. In the light of the contention of the learned counsel for the revisionist as aforesaid, I have gone through the entire facts and circumstance on record. The learned counsel for the revisionist took recourse of law laid down by this Court in the case of Israil v. Smt. Nafisa Begum and another, reported in 1997 ACC 398, in which this Court has held regarding the revisional jurisdiction that the revisional Court cannot change the finding of fact of trial Court, by substituting its own finding of facts and such findings of revisional Court are liable to be set aside. If the revisional Court was of the view that the findings of facts arrived at by the trial Court were perversed, the revisional Court should have remanded the case for decision afresh. 6. The law relating to revision as is held in various cases by Hon’ble the Apex Court as well as by the various High Courts in this country is as follows. “ Sections 397 and 401, Cr.P.C must be read together. They are interlinked and all deal with revisional jurisdiction. Section 397, Cr.P.C indicates the grounds and the cases in respect of which the revisional power can be exercised by the High Court and the Court of Session over their inferior Court. Barring a special jurisdiction exercisable by both in Section 398, Cr.P.C in respect of cases called for by them, Sections 399 and 401 give full powers of disposal in respect of cases taken up by both. Though, Section 401 refers to the powers of High Court, read with Section 399, it is clear that the powers referred to in Section 401 are equally exercisable by the Session Court in respect of cases taken up by sessions Court in revision. Section 401, Cr.P.C must be read along with and subject to provision of Section 397, if a case is outside the scope of Section 397, Section 401 cannot apply to it. Section 401, Cr.P.C must be read along with and subject to provision of Section 397, if a case is outside the scope of Section 397, Section 401 cannot apply to it. The section is, therefore, not independent of Section 397 and orders excluded by it cannot come within the purview of Section 401, Cr.P.C. The object of these sections is to confer a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It is for the above purpose, if necessary, the High Court or Session Court can exercise all appellate powers. Section 401, Cr.P.C confers the powers of Appellate Court on the revisional Court is with the above limited purpose and it cannot be exercised as a second appellate power. The jurisdiction under Sections 397 and 401, Cr.P.C, which is very wide, may be exercised to test the correctness, legality for even the propriety of the finding, sentence or order of the subordinate Courts or for satisfying itself as to the regularity of their proceedings. The revisional powers are not limited to the powers mentioned in sub-section (1) which merely described some of the reliefs which the High Court may grant, but it is not exhaustive and it includes all the powers of an appellate Court and more, to be fairly exercised according to the exigencies of each case and normally to be exercised only in exceptional cases when there is a glaring defect in the procedure and there is manifest error of point of law and consequently there has been a flagrant miscarriage of justice. The revisional Court is, however, not expected to act as if it is hearing an appeal and the jurisdiction is not to be ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. The revisional Court would not interfere unless it is shown to be perverse, or without evidence or not tenable in law. The order should not be set aside simply because other view is possible. While setting aside the finding of fact, the High Court must discuss the evidence on record which justify reversal of the findings recorded by the Court below. The order should not be set aside simply because other view is possible. While setting aside the finding of fact, the High Court must discuss the evidence on record which justify reversal of the findings recorded by the Court below. One cannot take exception to a judgement merely on the ground of its brevity but if the judgement appears to be cryptic and conclusions are reached without even referring to the evidence on record or noticing the findings of the Trial Court, the party aggrieved is entitled to ask for setting aside of such judgement. The trial Court and the appellate Court, on a appreciation of the evidence if reach the concurrent finding, the High Court would not interfere with the concurrent finding of the Court below by re-appreciating the evidence in its revisional Court. The High Court in ordinary course will generally not interfere in where there is a remedy available by appeal. “ 7. Looking to the law as is aforesaid for the facts of this case. The learned lower revisional Court has arrived on a different finding on the facts of the case as was arrived by the Magistrate concerned in the impugned order in revision before the learned lower revisional Court. The learned Magistrate had held that the respondent/applicant failed to prove reasonable circumstances for living separately from her husband, the facts that she was neglected by her husband and that he had refused to maintain her despite having sufficient means to maintain her. Contrary to it on the basis of the evidence on record, the learned lower revisional Court by way of passing the impugned order has arrived on this conclusion that since Smt. Sushila Devi, respondent No. 2 had desired before the learned Magistrate to go with her husband Vijendra Singh, revisionist and since her husband namely Vijendra Singh, revisionist in this case had refused to take her away with him and since her husband never came to take his wife with him from her Maika, therefore, the wife is entitled for maintenance to the tune of Rs. 800/- per month. 8. 800/- per month. 8. In my view since the learned Magistrate had not taken into consideration the evidence on record that the revisionist, who is respondent/applicant had refused to take her away with him, therefore, the learned revisional Court committed no error thereby passing the impugned order as the High Court and the Session Court can exercise all appellate powers, empowered as per Section 401, Cr.P.C. The jurisdiction under Sections 397 and 401 Cr.P.C being very wide is hereby found exercise legally to test the correctness, legality and the propriety of the finding of the learned Magistrate. Therefore, I do not find any substance in this revision which is liable to be dismissed and is hereby dismissed accordingly. ————