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2017 DIGILAW 381 (JK)

Gulam Hussain v. Mst. Zatoon Bibi

2017-07-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. In this petition under Section 561-A of the code of Criminal Procedure, the petitioner inter alia seeks to quash Execution proceeding and impugned orders dated 16.9.2014 (Munsiff Basoli) 30.01.2015 (Pr. Session Judge Kathua) and 08.03.2017 (Munsiff Basoli) with a further prayer to direct the Judicial Magistrate Ist Class, Basohli to hear the matter afresh and pass orders after hearing the petitioner. 2. Facts giving rise to filing of this petition briefly stated are that respondent No.1 is the wife of the petitioner and respondent Nos. 2 to 5 are their children. It is stated that respondent Nos. 6 to 8 are the children of 1st marriage of respondent No.1 and she (respondent No.1) without any reason or desertion has filed the petition for maintenance at Court below. It is further stated that she is still residing in the matrimonial house of the petitioner and it is the petitioner who has not been allowed to come to home at the age of 67 years. Petitioner many times approached respondent No.1 to allow the petitioner to company her in the matrimonial home, but all in vain. Thereafter, petitioner under Section 488 CrPC was filed before the court of learned Judicial Magistrate 1st Class Basohli and in that petition, petitioner was set ex parte. It is further stated that after knowledge of the same, petitioner filed a revision before the learned Pr. Sessions Judge Kathua but same was dismissed. Thereafter, petitioner filed application for setting aside the order before Munisff Basohli but the same application was not considered and the plea of the petitioner was rejected. It is further contended that the petitioner is a respectable and repudiated citizen of the society and the false and frivolous case has been registered against the petitioner. 3. The grievance of the petitioner is that respondents by concealing the truth have filed Execution proceedings pending before the learned Judicial Magistrate 1st Class Basohli which is totally based on false facts on two grounds, firstly, as respondent No.1 was never deserted by the petitioner and it is the petitioner who is out of his home and property in an old age and secondly the learned Judicial Magistrate 1st Class Basohli has directed to pay maintenance to respondent No.7 who is the daughter of first marriage of respondent No.1. Learned counsel further stated that the impugned orders are against the natural justice as no opportunity of being heard has been provided to the petitioner. 4. This court vide order dated 24.05.2017 directed that the maintenance as directed by the Court below will continue to be paid by the petitioner. 5. Today, there is no representation on behalf of the respondents. 6. Heard learned counsel for the petitioner and perused the case file also. 7. From the perusal of all three orders under challenge, it is revealed that these have been passed by the Courts at different stages of same proceedings between parties under section 488 Cr.P.C. Order dated 16.9.2014 reveals that it is final order passed by Munsiff Basohli in a petition under section 488 Cr.P.C., by virtue of this order petitioner herein has been directed to pay maintenance to respondents (his wife and children). Order dated 30.1 2015 reveals that it is an order passed by Pr. Sessions Judge Kathua, by virtue of which revision filed by petitioner-herein against ex-parte order 16.9.2014 of Munsiff Basolhi, was dismissed. Order dated 8.3.2017 reveals that this is an order passed by Munsiff Basolhi, by virtue of which, petition for setting aside ex-parte order dated 16.9.2014, has been dismissed. 8. Exercise of power under Section 561-A Cr.P.C. is the exception and not rule– Inherent jurisdiction of High Court under this section may be exercised :- 1. To give effect to an order under the Code. 2. To prevent abuse of the process of Court. 3. To otherwise secure the ends of justice. 9. Perusal of this section makes it is clear that the provisions of the Code are as intended to limit or affect the inherent powers of the High Courts. obviously the inherent power can be exercised only for any of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code than this section can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. 10. It is only if the matter in question is not covered by any specific provision of the Code than this section can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. 10. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, the power under this section can be used. 11. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases which may possibly arise. 12. Under section 561 A Cr.P.C., High court does not conduct a trial or appreciate evidence. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. 13. While exercising powers under Section 561-A of the Cr. P.C. the Court has to keep in mind that it should not ordinarily embark upon any legal order passed by any Court. 14. In present case, all the grounds taken in petition are pertaining to appreciation of facts, which courts below has already appreciated in detail and in its right perspective. This court cannot re-appreciate the same in petition u/s 561-A Cr.P.C and give different and contrary finding. 15. When the order of maintenance has become final, it has to be executed in its letters and spirits and according to law. Further, petitioner has remedy under law to challenge the order dated 8.3.2017 passed by Munsiff Basohli before competent Court. When petitioner has alternate legal remedy against the impugned orders, this petition is not maintainable. 16. So petitioner has not made out any case for interference with the orders impugned. Hence, this petition is dismissed along with all connected MPs if any.