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2014 DIGILAW 924 (GAU)

Subhash Chauhan v. State of Assam

2014-10-15

PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. This application u/s. 482 Cr.P.C., has been filed by the petitioner seeking quashment of judgment dated 30.01.2013, passed by the learned CJM, Bongaigaon in Misc. Case No. 41/2009 enhancing the maintenance allowance of petitioner from Rs. 400/- to Rs. 2500/- per month which was made payable w.e.f., 01.01.2012 as well as the judgment dated 24.03.2014 passed by the learned Addl. Sessions Judge (FTC), Bongaingaon affirming the judgment rendered by learned CJM in Misc. Case No. 41/2009. Heard Mr. N. Uddin, learned counsel for the petitioner and also heard Mr. B.J. Dutta, learned Addl. P.P., Assam. 2. With the consent of the parties, I propose to dispose of the matter at the stage of admissions itself. 3. The facts necessary for disposal of the present proceeding in brief are that the parties in Misc. Case No. 41/2009 are husband and wife. However, they fell apart sometime after their marriage for which the first party/wife withdrew herself from the society of her husband and had filed a proceeding u/s. 125 Cr.P.C., seeking maintenance allowance from her husband Mr. Subhash Chauhan, 2nd party in Misc. Case No. 41/2009. In course of time, the 2nd party/husband entered appearance and having filed written statement contested the proceeding. Thereafter, the parties have adduced their evidence. 4. On conclusion of trial, learned Magistrate granted maintenance allowance to the 1st party/wife @ of Rs. 400/- per month. Subsequently, on an application being filed by the 1st party u/s. 127 Cr.P.C., the amount of allowance was enhanced to Rs. 2,500/- per month vide order dated 24.03.2014 passed in Misc. Case No. 41/2009. In doing so, the learned CJM, Bongaigaon held that since the time of granting maintenance allowance to the 1st party/wife, the prices of essential commodities had increased manifolds and there was quantum enhancement in the amount of salary of the husband/2nd party. 5. Being aggrieved, the husband/2nd party preferred a revision before the Sessions Judge, Bongaigaon which was registered as C.R. No. 11(2)/2013 and same was came to be transferred to the file of Addl. Sessions Judge, (FTC) Bongaigaon for disposal in accordance with law. The learned Addl. Sessions Judge, on receipt of the case on transfer, gave notice to the respondent in the revision proceeding, who was the 1st party in Misc. Case No. 41/2009. 6. In due course, learned Addl. Sessions Judge, (FTC) Bongaigaon for disposal in accordance with law. The learned Addl. Sessions Judge, on receipt of the case on transfer, gave notice to the respondent in the revision proceeding, who was the 1st party in Misc. Case No. 41/2009. 6. In due course, learned Addl. Sessions Judge, Bongaigaon heard the parties and was pleased to affirm the order passed by learned CJM, Bongaigaon in Misc. Case No. 41/2009. Resultantly, the revision proceeding preferred by the husband/petitioner in C.R. No. 11 (2)/2013 stood dismissed vide order dated 24.03.2014 rendered in Criminal Petition No. 11 (2)/2013. 7. Still being aggrieved the petitioner filed this petition citing several infirmities in the order under challenge. 8. Before we proceed further, it needs to be stated that when in a proceeding initiated under Chapter IX of the Cr.P.C. which is aimed at protecting the most weaker section of the society, there are concurrent findings of the trial court and the Revisional court, ordinarily, there is little or no scope for High Court to interfere such concurrent findings on invoking the powers conferred on it u/s. 482 Cr.P.C. since such interference by High Court tantamounts to second revision which is not permissible u/s. 397(3)Cr.P.C. 9. In that connection, we may profitably peruse the decision of the High Court of Rajasthan in the case of Tulsi Ram v. Smt. Manju reported in 1998 Cri.L.J. 2559. The relevant part is reproduced below. "9. I have carefully considered the arguments advanced by the parties and read the orders passed by the Court below and pondered over the reasons given by them for arriving at the conclusions mentioned above. I am of the opinion that both the Courts have appreciated the evidence in a proper way and therefore, the concurrent findings of the learned Addl. Chief Judicial Magistrate and the learned Addl. Sessions Judge cannot be said to be perverse or unreasonable in any manner. In a case like this, if the finding on the face of the record can be said to be reasonable and is within the jurisdiction of the lower Court, a petition Under Section 482, Cr.P.C., does not lie. Such finding can be challenged either in appeal or by filing a revision petition. In a case like this, if the finding on the face of the record can be said to be reasonable and is within the jurisdiction of the lower Court, a petition Under Section 482, Cr.P.C., does not lie. Such finding can be challenged either in appeal or by filing a revision petition. In the instant case, this petition Under Section 482, Cr.P.C., is not maintainable, because it is in fact a second revision petition after the dismissal of the first revision petition by the learned Additional District Judge, Rajsamand. The petition, is therefore, clearly barred by Section 397(3), Cr.P.C., and in any case, I do not find any ground to take a view different from the view taken by the courts below." 10. Similar view has been rendered in the case of Mast Ram v. Smt. Shanti Devi reported in 2002 Cri.L.J. 1616. "7. As is evident from the petition itself, the petitioner intends to invoke the jurisdiction of this court under Section 482 of the Code and Article 227 of the Constitution of India with me aid of Sections 397and 401 of the Code. The petitioner having already availed himself of the remedy of criminal revision under Sections 397/401 of the Code is debarred from preferring a second revision in view of the provisions of Sub-section (2) of Section 397 of the Code, therefore, the question arises whether there is anything in this petition which may render it maintainable under Section 482 of the Code and Article227 of the Constitution? 8. Be it stated that here are concurrent findings of two courts below that the respondent does not possesses means maintain herself and that the petitioner is not maintaining her. Evidently, the merits of such findings cannot be gone into under the provisions of Section 482 of the Code and Article 227 of the Constitution which has a very narrow scope. The powers of this court sought to be invoked, can be exercised only in the rarest of the rare cases where grave injustice is shown to have been caused and requires to be undone." 11. The powers of this court sought to be invoked, can be exercised only in the rarest of the rare cases where grave injustice is shown to have been caused and requires to be undone." 11. Corning back to our case, I have found that the trial court in the present case has properly marshaled the evidence on record and come to the conclusion that there is need for enhancement of maintenance allowance payable to the wife/respondent herein and therefore, the learned trial court on considering various aspects quantified such amount @ Rs. 2,500/- per month which is made payable 01.01.2012 vide order dated 30.01.2013 passed in Misc. Case No. 41/2009. 12. When such an order was challenged in revision, the Revisional court too considered all the relevant factors and was pleased to affirm the judgment under challenge vide order dated 24.03.2014 passed in C.R. No. 11(2)/2013. On considering the judgments under challenge, in the light of materials on record, I have found that the judgments rendered by the courts below do not suffer from any infirmity whatsoever. 13. Being so, I have found that this proceeding lacks merit and same needs to be dismissed. Accordingly, this proceeding is dismissed.