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2018 DIGILAW 180 (JK)

KAILASHO DEVI v. ASHOK SINGH

2018-03-23

MOHAMMAD YAQOOB MIR

body2018
ORDER : Mohammad Yaqoob Mir, J. Petitioner had filed an application under Section 488 Cr.P.C., 1973 for grant of maintenance, which has been allowed by the Court of learned Chief Judicial Magistrate, Udhampur, vide its judgment dated 21.08.2006, aggrieved whereof, the respondent filed a revision before the Court of learned Sessions Judge, Udhampur, which has been allowed vide detailed order dated 15.10.2007, wherein it has been concluded that the respondent therein (petitioner herein) being the second wife of Ashok Singh, so is not entitled to the grant of maintenance as awarded by the Court i.e. learned CJM Udhampur, aggrieved whereof, the instant revision petition has been filed in this Court. 2. Learned senior counsel for the respondent rightly questioned the maintainability of the revision petition. Under Section 435 Cr.P.C., 1973 both High Court as well as Court of Sessions Judge have concurrent power of revision. Section 435 sub-section (3) provides that if an application under Section 435 Cr.P.C., 1973 has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. 3. Learned senior counsel for the respondent, in support of her contention, placed reliance on the judgment rendered by this Court in the case of Vijay Kumar v. Kaki reported in 2009 (1) JKJ 250 (HC) (Division Bench). Paragraphs 9 and 10 of the said judgment are advantageous to be quoted:- "9. Criminal Procedure Code (Amendment) Act, 2006, has substituted Section 435 with a new provision. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision be deleted and a new provision be substituted. Right to file an appeal or revision is a statutory right and if that right has to be taken away, the law will have to be retrospective in effect. We are in this case dealing with a procedural amendment by way of substitution which will operate only retrospectively which would mean that the said old provision does not exist as if it was never in the statue book from its very inception. Section 435 conferring revisional power on the High Court as well as on the Sessions Court is a procedural provision. When a procedural law is amended, it is trite law that it would act retrospectively unless a contrary intention is discernable in that statutory provision. Section 435 conferring revisional power on the High Court as well as on the Sessions Court is a procedural provision. When a procedural law is amended, it is trite law that it would act retrospectively unless a contrary intention is discernable in that statutory provision. The Criminal Procedure Code (Amendment) Act, 2006 does not indicate that sub-section (3) of Section 435 would only operate prospectively. In the absence of any specific stipulation, we are of the view that the said provision would operate retrospectively. 10. We are, therefore, of the view that on substitution of section 435 by the Code of Criminal Procedure, 1973 (Amendment) Act, 2006 it would operate retrospectively affecting pending Second revisions also. We, therefore, answer the reference by holding that no Second criminal revision would be maintainable either before this Court or the Sessions Court and the amendment affects pending second revisions as well before this Court and the Sessions Court." 4. Learned senior counsel also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of Deepti alias Arati Rai v. Akhil Rai and others reported in (1995) 5 Supreme Court Cases 751 and also on the judgment of the Hon'ble Apex Court in the case of Jagpati v. State of Madhya Pradesh reported in AIR 1993 Supreme Court 1360. 5. In view of the law laid down by the Division Bench of this Court as well as by the Apex Court, as referred to above, instant second revision is not maintainable. Same is accordingly dismissed. 6. Copy of the order be sent to the learned Sessions Judge as well to the Chief Judicial Magistrate, Udhampur, for information. (Mohammad Yaqoob Mir) Judge Jammu 23rd March, 2018 Narinder.