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2015 DIGILAW 316 (BOM)

Abhayrao Prakashrao Deshmukh v. State of Maharashtra

2015-02-03

S.B.SHUKRE

body2015
JUDGMENT: S.B. Shukre, J. 1. Heard. Rule. Rule returnable forth with. Heard finally by consent. By this petition, the petitioner has challenged the legality and correctness of the order dated 12.3.2014 passed by learned Additional Sessions Judge in Criminal Revision No. 27 of 2013, thereby confirming the order dated 15.4.2013 passed by the learned J.M.F.C. Pusad, partly allowing the application. 2. It was the case of respondents 2 and 3 that respondent No. 2, being the wife of petitioner and respondent No. 3 being daughter of the petitioner, were neglected by the petitioner and therefore, they were required to file an application under Section 125 of the Code of Criminal Procedure seeking grant of maintenance from the petitioner. That application was allowed by the learned Magistrate on 30.4.2008 and an amount of Rs. 1200/- and also Rs. 600/- as maintenance for respondents 2 and 3 payable by the petitioner were granted. Sometime thereafter, respondents 2 and 3 filed an application under Section 127 of the Code of Criminal Procedure Code seeking enhancement of the maintenance amount so granted by the learned Magistrate. That application was allowed on 15.4.2013 when the learned Magistrate directed the petitioner to pay an amount of Rs. 2000/- per month to respondent No. 2 and Rs. 1200/- per month to respondent No. 3 towards their maintenance from the date of the order. Since respondents 2 and 3 were not satisfied with this order, they moved revision application, being Crim. Revi. Appln. No. 27 of 2013 before the Court of Additional Sessions Judge, Pusad. This criminal revision application was allowed by the learned Additional Sessions Judge, Pusad, on 12.3.2014. The learned Additional Sessions Judge granted enhanced monthly maintenance amount at the rate of Rs. 4,000/- to the wife and Rs. 2,000/- to the daughter respectively. Not satisfied with the same, the petitioner is before this Court. 3. It is the contention of learned counsel for the petitioner that there was no change of circumstances and even then the learned Magistrate entertained the application under Section 127 of Code of Criminal Procedure by granting enhancement in maintenance amount. 2,000/- to the daughter respectively. Not satisfied with the same, the petitioner is before this Court. 3. It is the contention of learned counsel for the petitioner that there was no change of circumstances and even then the learned Magistrate entertained the application under Section 127 of Code of Criminal Procedure by granting enhancement in maintenance amount. According to learned counsel for respondents 2 and 3, the fact that the application under Section 127 of Code of Criminal Procedure was partly allowed by the learned Magistrate and was not challenged by the present petitioner, itself shows that the finding recorded by the learned Magistrate about the maintainability of the application under Section 127 of Code of Criminal procedure because of occurrence of new circumstances has been accepted by the petitioner and has become final. 4. It is also submitted by the learned counsel for the petitioner that it is well settled law that by exercising revisional jurisdiction under Section 397 of Code of Criminal Procedure, it is not permissible for the revisional Court to re-appreciate the evidence and the impugned order passed by the learned Additional Sessions Judge is an instance of re-appreciation of evidence. He submits that this order, therefore, is liable to be quashed and set aside. On the other hand, learned counsel for respondents 2 and 3 submits that the impugned order does not show in any manner any instance of re-appreciation of evidence and what it discloses is further consideration of the relevant material which had skipped from the attention of the trial Court. 5. Learned A.P.P. submits that appropriate orders may be passed. 6. So far as argument relating to absence of new circumstances is concerned, I find that the order passed by the trial Court allowing application under Section 127 of Code of Criminal Procedure has not been challenged by the petitioner and, therefore, now he cannot be heard on this challenge. 7. As regards the other ground of challenge. I find that the learned counsel for respondents 2 and 3 is right when he submits that what has been done by the revisional court is only correction of order committed by the trial Court. 7. As regards the other ground of challenge. I find that the learned counsel for respondents 2 and 3 is right when he submits that what has been done by the revisional court is only correction of order committed by the trial Court. The legality or correctness of the order being revised can be examined in the light of the fact as to whether or not the trial Court has considered the relevant evidence available on record and if the trial Court has not considered the same, it would be an illegality and even perversity, which is liable to be corrected in exercise of revisional jurisdiction. 8. On going through the impugned order in its entirety, it can be very well seen that the learned Additional Sessions Judge has only considered the evidence which was relevant for deciding the disputed points involved in the case and which evidence had not at all been considered in its proper perspective by the trial Court. Therefore, the exercise carried out by the Revisional Court is not one of re-appreciation of evidence, but is of consideration of relevant evidence available on record so as to examine the legality, correctness or propriety of the order. Therefore, on this count. I see neither any perversity nor illegality in the impugned order. 9. Learned counsel for the petitioner has further submitted that the finding recorded by the revisional Court on the aspect of financial position of the petitioner was already considered by the trial Court when it allowed the application filed by respondents 2 and 3 under Section 125 of Code of Criminal Procedure on 30.4.2008 and therefore, it was not permissible for the revisional Court to record another finding which varied from the finding recorded by the trial Court. 10. The argument cannot be accepted as it is not borne out from the impugned orders. Perusal of the order dated 30.4.2008 partly allowing the application under Section 125 of the Code of Criminal Procedure passed by the learned Magistrate however, does not show that the learned Magistrate has considered the documents then produced in evidence before him from the view point of estimating the income earned by the petitioner from the agricultural field. The learned Magistrate after considering the documentary evidence available on record only recorded a finding that the petitioner was from well to do family and was earning good income. The learned Magistrate after considering the documentary evidence available on record only recorded a finding that the petitioner was from well to do family and was earning good income. In the impugned order, the Revisional Court, apart from recording a finding about sound financial position of the petitioner, has also arrived at a conclusion about the probable estimated income earned by the petitioner from his agricultural fields. The probable estimated income of the petitioner was found to be at Rs. 25,000/- per month and after considering the deductions on account of contribution to the parents and loss that may follow on account of vagrancies of nature the revisional Court has considered the income of the petitioner to be at Rs. 18,000/- per month and out of this income, the revisional Court has found that at least 1/3rd amount thereof, i.e. about Rs. 6,000/- can certainly be contributed by the petitioner towards the maintenance amount for his wife and daughter. The learned Additional Sessions Judge has also considered the rising cost of living by referring to certain specific instances which are a matter of common experience of all. Such an approach adopted by the learned Additional Sessions Judge is well within the parameters of law and cannot be seen to be perverse or illegal or inappropriate. On the contrary, I find that the approach followed by the learned Additional Sessions Judge appears to be contributing towards cause of justice and upholding the object of summary remedy to destitute women and children provided under Section 125 of the Code of Criminal Procedure. Thus, I find neither any illegality nor perversity in the order impugned. Consequently, I find no merit in the writ petition which deserves to be dismissed. It is accordingly dismissed. Rule is discharged.