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2012 DIGILAW 568 (PNJ)

Harminder Singh v. State of Punjab

2012-04-18

RAMESHWAR SINGH MALIK

body2012
JUDGMENT Mr. Rameshwar Singh Malik J.:- The petitioner has approached this Court invoking its inherent jurisdiction by way of the instant petition under Section 482 of the Code of Criminal Procedure (‘Cr.P.C.’ for short). He seeks quashing of the order dated 28.4.2011 (Annexure P-5), passed by the learned Additional Chief Judicial Magistrate, Moga, vide which respondents No. 2 and 3 were granted ad-interim maintenance @ Rs. 1,000/- per month from the date of application and Rs.1,500/- as litigation expenses under Section 125 Cr.P.C. He has also impugned the order dated 24.2.2012 (Annexure P-7), passed by the learned Additional Sessions Judge, Moga, thereby upholding the grant of adinterim maintenance @ Rs.1,000/- per month. 2. The brief facts of the case are that the petition under Section 125 Cr.P.C. was filed by respondent No.2 vide Annexure P-1, claiming maintenance @ Rs. 5,000/- per month. The petitioner filed his reply by way of Annexure P-2, saying that he was posted as Punjabi Teacher in S.D. Senior Secondary School, Moga, and was getting the salary of only Rs.27,00/- per month, whereas respondent No.3 was earning much more. Learned Additional Chief Judicial Magistrate, Moga, vide order dated 28.4.2011, allowed the application and directed that an amount of Rs. 1,000/- per month be paid as interim maintenance from the date of application. He also directed the petitioner to pay Rs.1,500/- as litigation expenses, vide impugned order dated 28.4.2011 (Annexure P-5). 3. The revision petition filed by the petitioner came to be decided, vide impugned order dated 24.2.2012 (Annexure P-7), partly modifying the order dated 28.4.2011, passed by the learned Chief Judicial Magistrate, Moga. Direction for payment of interim maintenance @ Rs. 1,000/- per month was upheld, however, the order for payment of litigation expenses to the tune of Rs. 1,500/- was set aside. 4. Feeling aggrieved against the above said orders, the petitioner has challenged both the above said orders, by way of the instant petition under Section 482. Cr.P.C. 5. Learned counsel for the petitioner has vehemently contended that the impugned orders suffer from patent illegality as the learned courts below have miserably failed to appreciate the true facts and circumstances of the present case. Learned counsel for the petitioner further contended that since the petitioner was earning a meager amount of Rs. 2,700/- per month, grant of maintenance @ Rs. Learned counsel for the petitioner further contended that since the petitioner was earning a meager amount of Rs. 2,700/- per month, grant of maintenance @ Rs. 1,000/- per month was on higher side, particularly when respondent No. 3 was earning handsome income. 6. Concluding his arguments, learned counsel for the petitioner contended that the impugned orders were liable to be set aside and the present petition deserves to be allowed. 7. Having heard the learned counsel for the petitioner and going through the record of the case, this Court is of the considered opinion that the present petition is bereft of any merit and liable to be dismissed. 8. There are two issues which fall for consideration of this Court. The first and important one is regarding the maintainability of the present petition, which amounts to second criminal revision, under the garb of this quashing petition under Section 482 Cr.P.C. The second issue is regarding the merits of the case as to whether amount of Rs. 1,000/- per month, awarded as interim maintenance, is on higher side in the given fact situation of the present case. 9. Taking second issue first, it is pertinent to note here that with and amount of Rs. 1,000/- per month, a child cannot be provided good food and education, besides other necessary expenses, in these days of sky-rocketing prices. Thus, respondent No.3 being the mother of respondent No.2, would be certainly taking care so for as the extra expenses, whichever, are required to be incurred, on the maintenance of respondent No.2, because Rs.1,000/- per month would not be meeting the total monthly maintenance expenses of respondent No.2. Further, learned courts below have very rightly observed that even an unskilled labourer is earning Rs. 4,000/- per month these days. It is his own case set up by the petitioner that he is employed as a teacher in S.D. Senior Secondary School, Gandhi Road, Moga. It has also been observed by the learned Additional Sessions Judge, Moga, while passing the impugned order dated 24.2.2012 that no pay certificate was adduced, in support of the alleged salary, stated by the petitioner. 10. In view of these facts and circumstances of the present case, I have no hesitation to hold that the interim maintenance @ Rs. 1,000/- per month, granted in favour of respondent No.2 by the learned courts below, is not on higher side. 10. In view of these facts and circumstances of the present case, I have no hesitation to hold that the interim maintenance @ Rs. 1,000/- per month, granted in favour of respondent No.2 by the learned courts below, is not on higher side. Further, neither this Court has found any manifest illegality nor any has been pointed out by the learned counsel for the petitioner, in any of the impugned orders passed by the learned courts below, so as to warrant the exercise of inherent jurisdiction of this Court under Section 482 Cr.P.C. 11. So far as first issue is concerned, it is to be noted that during the course of the hearing, when confronted with the statutory bar envisaged under Section 397 (3) Cr.P.C. about the maintainability of the instant petition, learned counsel for the petitioner had no answer. I may hasten to add that it may not be an absolute rule but under normal circumstances, the second criminal revision under the garb of the quashing petition under Section 482 Cr.P.C., as in the present case, is not permissible. I say so because the provisions of law cannot be allowed to be circumvented. 12. It is a matter of record that the petitioner has already filed his first revision petition before the learned Sessions Court, which came to be decided on 24.2.2012, vide Annexure P-7. In such a situation, the question that arises for the consideration of this Court is whether the petitioner can be permitted to circumvent the provisions of law contained in 397 (3) Cr.P.C., by resorting to the remedy under Section 482 Cr.P.C., particularly when no serious prejudice, as such, has been pointed out by the learned counsel for the petitioner, which might have been caused to him. 13. It is also the settled proposition of law that inherent powers under Section 482 Cr.P.C. cannot be exercised, whenever, there is a statutory bar in the Code, as in the present case. The view taken by this Court finds support from the Judgment of the Hon’ble Supreme Court in Dharmapal and others versus Smt. Ramshri and others Recent Criminal Reports 1993 (1) 696. The view taken by this Court finds support from the Judgment of the Hon’ble Supreme Court in Dharmapal and others versus Smt. Ramshri and others Recent Criminal Reports 1993 (1) 696. The relevant observations made by the Hon’ble Supreme Court in para 6 of the judgment, which can be gainfully relied upon, read as under:- “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 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) bars 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.” 14. So far as the invoking of the inherent jurisdiction of this Court under Section 482 Cr.P.C., at the hands of the petitioner is concerned, it is the settled position in law that powers under Section 482. Cr.P.C. can be exercised only for achieving the objects specified in the section itself. The powers under Section 482 Cr.P.C. being in the nature of discretionary powers, are to be exercised very sparingly and with circumspection. 15. In view of the fact situation of the present case, noted above, the instant one is not a fit case for exercising the inherent powers under Section 482 Cr.P.C. 16. Keeping in view the totality of the facts and circumstances of the present case, coupled with the reasons aforementioned, the present petition is devoid of any merit and it must fail. 17. Accordingly, the present petition is dismissed. ----------------------