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2018 DIGILAW 521 (ORI)

Jagannath Debta v. Kamala Bhue

2018-05-08

D.P.CHOUDHURY

body2018
JUDGMENT Dr.D.P. CHOUDHURY, J. - This is an application under Section 482 Cr.P.C. to quash the order of granting maintenance passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur in Criminal Revision No.43/3 of 2005-06 under Section 125 of the Code of Criminal Procedure. 2. Mr. H.S. Mishra, learned Counsel for the petitioner submits that the opposite party claiming to be wife of the petitioner filed petition under Section 125, Cr.P.C. praying maintenance for her and her minor daughter set to have been born through the wedlock between the petitioner and opposite party. According to him, the petitioner has got married to the opposite party at all. However, learned Trial Court allowed maintenance of Rs.400/- per month to be paid by the present petitioner to opposite party without any finding that the opposite party is the wife of the present petitioner. So, the decision of the learned Trial Court is wrong. 3. Mr. Mishra, learned Counsel fort the petitioner further submits that against the order of maintenance, Criminal Revision No.43/3 of 2005-06 was filed before the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur. Learned Adhoc Additional Sessions Fast Track Court, Padampur without appreciation of the evidence on record endorsed the finding of the learned Trial Court in granting maintenance to the opposite party who is representing the minor daughter. The said order of the revisional authority is perverse and based on no evidence. So, he filed the present criminal misc. case challenging the order in the criminal revision passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur. 4. Learned Counsel for the opposite party failed to appear at the time of hearing although Mr.S.N. Mishra, learned Counsel and his associates has made appearance for the opposite party. 5. Considered the submissions of the learned Counsel for the petitioner. Before going to decide the merit of the prayer of the petitioner, it is to be examined whether the present criminal misc. mase is maintainable against the revision order passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur. 6. Section 482, Cr.P.C. is as follows : “482. Considered the submissions of the learned Counsel for the petitioner. Before going to decide the merit of the prayer of the petitioner, it is to be examined whether the present criminal misc. mase is maintainable against the revision order passed by the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur. 6. Section 482, Cr.P.C. is as follows : “482. Saving of inherent powers of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 7. The aforesaid provision is very clear to show that this Court has inherent power to exercise the same if there is no provision under Cr.P.C. to be exercised. On the other hand, it is to be exercised if it is required (i) to prevent abuse of process of Court, (ii) or to secure ends of justice. 8. It is reported in Gian Singh versus State of Punjab and another : (2012) 10 SC 303, at paragraphs 53, 54 and 55 where Their Lordships have observed in following manner :- “53.Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It begins with the words, ‘nothing in this Code’ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any Court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be restored to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objective, (i) to prevent abuse of the process of any Court, or (ii) to secure the ends of justice, is a sine qua non. 55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quado lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially it, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.” 9. The aforesaid decision has been also followed by the Hon’ble Apex Court in the case of State of Maharashtra through Central Bureau of Investigation versus Vikram Anthari Doshi and others: (2014) 15 SCC 29 . 10. With due regard to the aforesaid decisions, it is clear that this Court has inherent power to exercise the same if there is no provision under Cr.P.C. to be exercised. 10. With due regard to the aforesaid decisions, it is clear that this Court has inherent power to exercise the same if there is no provision under Cr.P.C. to be exercised. On the other hand, il there is prohibition by the provision of Cr.P.C. to entertain such claim even if filed under the garb of this Section but could have been filed such provision of Cr.P.C., then the same is not maintainable. 11. Section 379 (3), Cr.P.C. is as follows :- “3). If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” 12. Sub-section 3 of Section 379, Cr.P.C. shows that no second revision would lie by the same person who has been defeated in the criminal revision filed before the learned Sessions Court. On the other hand, the same party cannot prefer the second revision being barred as stated above. Of course, the present application is filed under Section 482, Cr.P.C. by the petitioner who was also petitioner in the criminal revision filed before the learned Adhoc Additional Sessions Judge, Fast Track Court, Padampur. 13. Viewing the nature of the relief claimed in this case, the criminal Misc. Case under Section 482, Cr.P.C. is not maintainable as it has been filed asking for relief as if it is a second revision under Cr.P.C. and the same is not maintainable under the provision of Cr.P.C. On the other hand, where the prayer for relief is made bye-passing the provision which debars to file the same cannot be placed under Section 482, Cr.P.C. to allow the same. The inherent power is only to be exercised sparingly keeping in mind the limitation as propounded by the Hon’ble Apex Court. 14. Assuming that this criminal Misc. Case is maintainable, the judgment of the Courts below are gone through and there is nothing found to interfere with the concurrent findings of the Courts below. Hence, on merit also it is hardly to interfere with the findings of the learned Courts below. 15. In terms of the above discussion, the CRLMC sans merit, as such it is dismissed. The interim order passed earlier stands vacated. The L.C.R. be returned forthwith. CRLMC dismissed.