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2014 DIGILAW 1167 (JHR)

Afrozi Khatoon v. State of Jharkhand

2014-11-27

AMITAV K.GUPTA

body2014
ORDER : This revision is directed against the order dated 19.08.2010 passed by the Judicial Magistrate, 1st Class, Koderma whereby maintenance was ordered to be paid to the minor children of the applicant/O.P.no.2, from the quarterly accruing interest of the fixed deposit of Rs.5.00 lacs having STDR No.01291006032, with a further direction that principal amount of fixed deposit of Rs.5 lacs shall not be allowed to be encashed by any one even after its maturity and it shall be renewed from time to time on the application of O.P.no.2, herein, so that the maximum benefit of the accrued interest of the said fixed deposit would be available for the maintenance of the children. 2. Learned counsel for the petitioner has submitted that the aforesaid order has been passed without noticing the petitioner. That the petitioner is the mother-in-law of O.P.no.2 and aged about 75 years; that under the provision of Section 125 Cr. P.C. the petitioner is not bound to maintain O.P.No 2 and her minor children. That the fixed deposit stands in the name of the petitioner and her two sons and one of the son is the husband of O.P.no.2; that the petitioner is undergoing treatment for her heart disease and other ailments of old age; that petitioner had given in writing to the Bank that annual interest should be credited in her Current Account no.11471747136. It is further urged that amount of Rs.5 lac kept in fixed deposit was given as 'dain mehar' by the late husband of the petitioner; that the interest accruing from the said amount is spent by the petitioner to meet her medical expenses and the needs and requirement for her livelihood and maintenance. That the petitioner came to know from the Branch Manager of the Bank that as per the order of the Court the accrued interest in the fixed deposit amount is not being credited to her account. It is urged that the petitioner is living separately from her sons and daughters and she has to undergo treatment for her heart disease at B.M. Birla, Heart Research Centre, Kolkata and in support of the same medical certificate of the aforesaid institute has been annexed as Annexure-1. It is urged that the petitioner is living separately from her sons and daughters and she has to undergo treatment for her heart disease at B.M. Birla, Heart Research Centre, Kolkata and in support of the same medical certificate of the aforesaid institute has been annexed as Annexure-1. It is contended that the order of granting maintenance out of the interest accruing from fixed deposit lying in the name of the petitioner without noticing her, is bad in the eye of law and is fit to be set aside. 3. On the other hand, learned counsel for O.P.no.2 has contended that the present revision application is not maintainable as the petitioner was not a party to the proceeding under Section 125 Cr. P.C. hence, she has no locus standi. It is canvassed that the husband of O.P.no.2 had preferred Cr. Revision no.833/2010 against the impugned order and the same was dismissed, thus in the given circumstances this Court cannot review the order passed by a co-ordinate Bench of this Court dismissing the aforesaid revision application. That the trial court has discussed the evidence on record and after hearing the parties has given a finding that the STDR is in the name of the petitioner and her two sons, thus as per the evidence on record it has held that no evidence has been brought on record to show that the amount of Rs.5.00 lacs was given as 'dain mehar' by her late husband to the petitioner. It is urged that the petitioner is residing jointly with her sons, accordingly, the aforesaid amount is the joint property therefore, the trial court has rightly ordered for payment of maintenance to the minor children of O.P.no.2 out of the quarterly interest accruing on the said STDR. 4. Learned counsel for the petitioner has submitted that under Section 397 the High Court in its revisional jurisdiction can set aside the order of the trial court if there appears any illegality, impropriety or incorrect finding in the order passed by the trial court. Reliance has been placed on the decision of Hon'ble Supreme Court in the case of Pratap Vs. State of U.P., reported in AIR 1973 SC 786 It is also submitted that under Section 397 read with 401 Cr. Reliance has been placed on the decision of Hon'ble Supreme Court in the case of Pratap Vs. State of U.P., reported in AIR 1973 SC 786 It is also submitted that under Section 397 read with 401 Cr. P.C. power can be exercised suo motu by the High Court without filing of any application by any party or any person if it comes to the knowledge of the High Court that there is illegality or impropriety apparent on the face of the order of the trial court. To substantiate the arguments reliance has been cited on the decision of the Apex Court in the case of Rati Ram and ors vs. State of U.P., reported in 1997 Cri. L.J. 1525. It has been argued that Cr. Revision no.833/2010 was preferred by the son of the petitioner which was subsequently withdrawn, accordingly it stood dismissed as withdrawn and there was no finding by the Court on merits of the case. 5. It is noticed from the arguments advanced by the counsels that primarily the question for determination and consideration is firstly whether the petitioner, who is the mother-in-law of O.P.no.2 and was not a party in the proceeding has a locus standi to file the present revision? Secondly, whether the dismissal of Cr. Revision no.833/2010 preferred by husband of O.P.no.2 creates a bar on the present revision filed by the petitioner? 6. Before deliberating on the said questions it will be beneficial to refer to Section 397 Cr. P.C. and Section 401 Cr. P.C. which reads as follows:- “Sec.397. Calling for records to exercise powers of revision.-(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to pay interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. “ “Section 401.High Court's powers of revision.--(1)In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on as Court of Appeal by Sections 386,389,390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3 ---- ----- ----- ----- ---- (4) ---- ----- ------ ------ (5) ----- ----- ----- ------ 7. Contention of the learned counsel for O.P.no.2 that the petitioner has no locus standi is rather misplaced because it is evident from the order impugned that court below has given a finding that the petitioner could not prove the fact that the said amount was given by her late husband as 'dain mehar' and she can claim maintenance from her second son who has substantial source of income from his employment in C.C.L. Such observation and finding is against the evidence on record, as it is apparent, that the petitioner was not a party in the application filed under Section 125 Cr. P.C. neither she was produced as a witness or any cross-examination was done on this aspect. P.C. neither she was produced as a witness or any cross-examination was done on this aspect. In fact the order affecting her interest has been passed without giving her an opportunity of hearing. 8. The contention of the learned counsel for the petitioner is substantiated as noticed by the provisions of Section 397Cr.P.C. and the High Court while exercising the power of revision can examine the correctness of any finding, sentence or order rendered or passed by the subordinate courts. The power is conserved to ensure that justice is done in accordance with recognised rules of criminal jurisprudence so as to prevent miscarriage of justice. It can be examined where there is material error or defect in law or procedure or improper appreciation of evidence in the given facts of the case. 9. The contention of the learned counsel for O.P.no.2 that an order of dismissal has already been passed in Cr. Revision no.833/2010, thus present revision is not maintainable on the said ground, is not tenable because admittedly the said earlier revision was dismissed as withdrawn. There is no finding on merit or any application of judicial mind to the facts and evidence on record and the same does not come within the purview of judgment in terms of Section 362 Cr. P.C. Thus the contention of the learned counsel for O.P.no.1 is rejected and it is held that the revision filed by the petitioner is maintainable. 10. Learned counsel for O.P.no.2 has also submitted some documents in the present revision and urged that O.P.no.2 has substantial source of income as can be witnessed from the various sale deeds executed by him whereby he had sold ancestral land amounting to Rs.12.00 lacs and the petitioner had also sold land worth Rs.13.00 lacs. These documents can be produced before the trial court for appreciating the plea of the parties and it will not be proper for this Court to give any finding on the said documents at this stage. 11. These documents can be produced before the trial court for appreciating the plea of the parties and it will not be proper for this Court to give any finding on the said documents at this stage. 11. In view of the discussions made above, it is evident that the trial court has committed an error in law and on fact by giving a finding that the petitioner had not been able to prove that the said Fixed deposit was in terms of 'dain mehar' given to her husband without noticing her and by ordering that the maintenance amount to be paid from STDR amount which was fixed in the name of petitioner and her two sons. The trial court at least should have noticed the petitioner-wife before giving a finding on this aspect when her interest is being infringed. Apparently the finding has been given in absence of any evidence to this effect or an opportunity of hearing to the petitioner. Accordingly, the impugned order is not sustainable and is hereby set aside. 12. The matter is remitted to the court below and the parties are at liberty to adduce evidence and the court below, after giving an opportunity of hearing to the parties, shall pass order in accordance with law. 13. With the said observations and directions this revision is hereby disposed of.