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2018 DIGILAW 699 (KER)

Shamsad Beegam, D/o. Ahammedkutty v. Abid C. P. S/o. Hamza

2018-09-03

ANNIE JOHN

body2018
ORDER : 1. In this petition filed under Section 482 Cr.P.C, the petitioner seeks a direction to modify Annexure 1 order and to return the gold ornaments or its value to the petitioner. 2. The petitioner is the petitioner in M.C. No. 21 of 2009 filed under Section 3 of the Muslim Women (Protection of rights on Divorce) Act on the file of the Judicial First Class Magistrate Court V, Kozhikode for a reasonable and fair provision, compensation and other reliefs as a divorced wife. The petition was allowed by the Judicial First Class Magistrate-V ordering return of 34 sovereigns of gold or its market value, Rs.3000/-as iddat for three months and Rs.84000/-as reasonable and fair provision. Challenging the said order, criminal revisions were filed by the petitioner and the respondent. The revision petitions were heard together and disposed of by Annexure 1 common order cancelling the order to return 34 sovereigns of gold ornaments or its value, but has increased the reasonable and fair provision and the iddat expenses. 3. The learned counsel for the petitioner has submitted that the Sessions Court has disallowed the prayer for return of 34 sovereigns of gold ornaments or its value to the petitioner. He has also submitted that he has produced sufficient receipts to establish that the respondent has misappropriated the gold ornaments. 4. Now the question is regarding the maintainability of this petition. In Basudev Bhoi v. Bipadabhanjan Puhan (1997) 2 Crimes 331 (Orri), it is held that inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. 5. Section 397 of Cr.P.C empowers the High Court, Sessions Court to call for and examine the record of any proceedings before any inferior Criminal Court situate within its or its local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety or any finding, sentence or order, recorded or passed. 6. It is also held in paragraph 6 of the decision in Kavita v. State [2000 Cr LJ 315 (Del) thus: "6. On a conspectus analysis of all these authoritative pronouncements of the Apex Court, it is absolutely clear that inherent jurisdiction of this Court under Section 482 Cr. 6. It is also held in paragraph 6 of the decision in Kavita v. State [2000 Cr LJ 315 (Del) thus: "6. On a conspectus analysis of all these authoritative pronouncements of the Apex Court, it is absolutely clear that inherent jurisdiction of this Court under Section 482 Cr. P.C. can be exercised for advancement of justice and if any attempt is made to abuse the process of the Court and this Court considers its interference absolutely necessary, in that event provision of sub-Section (3) of Section 397 Cr. P.C. cannot limit or affect the exercise of inherent power under Section 482 Cr. P.C. But it has to be borne in mind that extraordinary powers under Section 482 Cr. P.C. have to be exercised sparingly and it should not be resorted to like the remedy of appeal or revision." 7. Section 482 Cr.P.C preserves the inherent powers of the High Court to prevent an abuse of the process of any Court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. Section 482 is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. 8. In view of the decisions cited supra, I find that Section 482 Cr.P.C cannot be applicable to this case and the petitioner has got the alternative remedy provided by the statute to rectify the correctness and illegality of the order passed by the Sessions Court. As per Annexure I, final order has been passed by the Court of Sessions, Kozhikode in Crl.R.P. Nos. 60 and 81 of 2012. If the petitioner is aggrieved by the same, the remedy available to him is to file a review petition before the same court or to file a revision before the concerned appellate court. Instead, he has approached this Court by filing Crl.M.C under Section 482 Cr.P.C, which is not maintainable. Accordingly, this petition is dismissed. 60 and 81 of 2012. If the petitioner is aggrieved by the same, the remedy available to him is to file a review petition before the same court or to file a revision before the concerned appellate court. Instead, he has approached this Court by filing Crl.M.C under Section 482 Cr.P.C, which is not maintainable. Accordingly, this petition is dismissed. However, the petitioner can resort to appropriate remedy as per law and the delay occurred due to the pendency of this Crl.M.C. before this Court will not stand in the way of his right to seek appropriate remedy before the competent court.