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2017 DIGILAW 672 (JK)

Mohd. Abdullah v. Baggi

2017-08-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Petitioner-Mohd. Abdullah, through the medium of this petition has prayed for quashing of order 11.02.2017 passed by learned Principal Sessions Judge, Reasi, by virtue of which criminal revision filed by the petitioner against order dated 06.10.2016 of learned JMIC Reasi disallowing the application of the petitioner for setting aside ex-parte proceedings, was dismissed. Petitioner has also prayed for quashing of order dated 06.10.2016 by virtue of which JMIC Reasi pursuant to the application filed by the petitioner for setting aside ex-parte proceedings came to be rejected. Petitioner has further prayed for quashing of order dated 16.01.2015 by virtue of which interim maintenance of Rs.3000/- per month has been granted in favour of respondent and against the petitioner. Petitioner has also challenged one more order dated 13.05.2017 by virtue of which the saving account No.0281040100001359 in J&K Bank, Branch Dharmari, Reasi, came to be attached by the Court of learned JMIC Reasi. 2. In petition it has been stated that petitioner being pensioner is not able to give interim maintenance to respondent; that his wife is taking old age pensions; that she is living with her sons, who are govt. Servants. 3. I have heard the counsel for petitioner at length. 4. Brief facts of the case are that respondent filed a petition under Section 488 Cr.P.C. for grant of maintenance against petitioner herein before learned JMIC Reasi. Along with main petition, an application for grant of interim maintenance was also filed. Petitioner herein did not appear before Court below despite service, so trial Court on 16.01.2015 passed an order of interim maintenance of Rs.3000/- per month in favour of respondent till final disposal of the main case in ex-parte. Thereafter, petitioner herein filed an application for setting aside ex parte proceedings initiated against him. On 06.10.2016, learned JMIC Reasi dismissed the said application for setting aside ex parte proceedings. Thereafter, it appears that the petitioner herein filed a revision petition against the order of learned JMIC Reasi, dated 06.10.2016 whereby dismissing his application for setting aside ex parte proceedings. In the revision petition, learned Sessions Judge, Reasi vide order dated 11.02.2017 has held that no doubt the petitioner has failed to show good cause for setting aside ex parte proceedings but he can participate in further proceedings in the case. In the revision petition, learned Sessions Judge, Reasi vide order dated 11.02.2017 has held that no doubt the petitioner has failed to show good cause for setting aside ex parte proceedings but he can participate in further proceedings in the case. Court further held that as claimant has concluded her evidence and case is at the stage of final arguments so Court allowed the petitioner to advance the argument at the time of final arguments. 5. In this way, it is evident that petitioner has failed before JMIC Reasi and also failed in revision petition filed by him against the order of learned JMIC dated 06.10.2016 before Sessions Judge Reasi. 6. In 1995 (2) CRIMES 306 in case titled Ganesh Naryan Hedge Vs. S. Bangarappa, it is held as under by the Apex Court:- “Section 399 of code of criminal procedure confers upon the sessions judge the power to revise any order made by magistrate but section (3), there of declare at the same time that where any application for revision is made before session judge, the decision of session judge shall be final and no further proceeding by way of revision shall be entertained by High Court or any other court. On the other hand section 482 Cr.p,c provides that nothing in the code shall be deemed to limit or effect the inherent power of High Court to make necessary and proper order to prevent injustice. Though availability of remedy under section 399 Cr.P.C. does not bar invoking powers of High Court under section 482 Cr.P.C. but once a person has availed the remedy under section 399 Cr.P.C., he cannot approach the High Court as second revisional court. Therefore, the High court was clearly in error in assessing the material before it and concluding that the complaint could not be proceeded with. In doing so the High Court went beyond the purview of section 482 in quashing the charge. It is further held that High Court can exercise inherent powers under section 482 inspire of availability of remedy of revision under section 399 in spite of availability of remedy of revision under section 399 before the session judge, however if once the revisional jurisdiction of the session judge in availed under section 399, the High Court should not Act as second revisional court. Interference can be allowed only when the High Court is satisfied that in permitting the complaint to proceed would amount to abuse of process of the court. It is not however necessary that there should be a meticulous analysis of the case to find out whether there would end in conviction or not. 7. In 1997 (1) Crimes in case titled Krishnan and another v Krihnaveni and another, it is held as under:- “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent power of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or section 397(2) of the Code. Bare perusal of above laws it is evident that High Court in the guise of inherint power, court shall not ordinarily interfere in finding of revision; however high court has suo motu power under Section 401 (438 of state Cr.P.C) and continuous supervisory jurisdiction under Section 483 (561-B of state Cr.P.C), if High court finds that there is grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice expeditious trial is conducted.” 8. In the present case, petitioner has raised disputed question of facts, which cannot be appreciated in this petition, unless finding recorded by court below is perverse in nature. Petitioner has already availed legal remedy available to him before law by filing an application for setting aside ex-parte order impugned before JMIC Reasi and then a revision before Session Judge, Reasi against the order of JMIC. Both Courts of JIMC and Sessions Judge Reasi, have already passed reasoned orders. There is no perversity of laws and facts in the orders of Courts below. 9. Petitioner has remained mum for quite some time, when ultimately JMIC Reasi passed order of attachment of A/C of petitioner, he awakened and filed petition before Court below. As already held, main case has been fixed for final arguments and already petitioner has been granted opportunity to argue the matter by learned Session judge. 9. Petitioner has remained mum for quite some time, when ultimately JMIC Reasi passed order of attachment of A/C of petitioner, he awakened and filed petition before Court below. As already held, main case has been fixed for final arguments and already petitioner has been granted opportunity to argue the matter by learned Session judge. Law comes to rescue only those litigants, who are diligent; in present case petitioner has taken Court for granted that he will succeed in getting relief as and when he wishes. 10. Hence this petition is dismissed.