Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 75 (ORI)

Hrudananda Das v. State of Orissa

2018-01-15

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. 1. The petitioner Dr. Hrudananda Das who is now posted as Assistant Surgeon in C.H.C., Binjharpur, Jajpur has filed this writ petition challenging the impugned order dated 05.06.2008 passed by the learned Addl. Sessions Judge (Fast Track Court-II), Bhadrak in Criminal Revision No. 16 of 2007 in dismissing the revision and thereby confirming the impugned order dated 06.02.2007 passed by the learned S.D.J.M., Bhadrak in Misc. Case No.48 of 2004. 2. The opposite party no.2 Sumati Jena @ Das is the wife of the petitioner and opposite parties nos. 3, 4, 5 namely Swagarika Das, Adhatmika Das and Dipasikha Das are the children of the petitioner and opposite party no.2. The opposite parties nos. 2 to 5 filed a petition under section 125 of Cr.P.C. in the Court of learned S.D.J.M., Bhadrak which was registered as Misc. Case No. 48 of 2004 claiming maintenance against the petitioner. The learned S.D.J.M., Bhadrak has been pleased to allow the misc. case on contest and directed the petitioner to pay monthly maintenance of Rs.1500/-(rupees one thousand five hundred only) to each of the opposite parties nos. 2 to 5 from the date of institution of the case i.e. from 02.04.2004 with a further direction to the petitioner to pay the arrear maintenance to the opposite parties nos. 2 to 5 within two months of the order. 3. The petitioner preferred a revision before the Court of Session which was heard by the learned Addl. Sessions Judge (Fast Track Court-II), Bhadrak in Criminal Revision No. 16 of 2007 which was dismissed vide order dated 05.06.2008. 4. Mr. P.R. Chhatoi, learned counsel appearing for the petitioner while challenging the impugned orders of the learned Courts below contended that since the opposite party no.2 deserted the petitioner voluntarily, in view of section 125(4) of Cr.P.C., she is not entitled to get any maintenance. He further contended that the amount of maintenance fixed was on the higher side and it should be reduced. In support of such contention, the learned counsel for the petitioner filed the recent pay slip of the petitioner which was issued by the Medical Officer in charge, C.H.C., Binjharpur, Jajpur dated 21.09.2017. 5. Mr. B.S. Dasparida, learned counsel for the opposite party no. In support of such contention, the learned counsel for the petitioner filed the recent pay slip of the petitioner which was issued by the Medical Officer in charge, C.H.C., Binjharpur, Jajpur dated 21.09.2017. 5. Mr. B.S. Dasparida, learned counsel for the opposite party no. 2 on the other hand contended that such a point was raised before the learned Revisional Court which has dealt with such point and held that there is no material to show that the opposite party no.2 and the petitioner were living separately by mutual consent or the opposite party no.2 had left the matrimonial home voluntarily deserting the petitioner and she was staying with her parents. It was further held that the opposite party no.2 adduced evidence to prove that the petitioner deserted her, torture her demanding more dowry for which a criminal case was initiated against him and the same is subjudiced in the Criminal Court. It was further held that there is no evidence from the side of the petitioner to prove that he tried to get back his wife (opposite party no.2) and children (opposite parties nos. 3 to 5) from the parents’ house of the opposite party no.2 at any time or any case was instituted for restitution of conjugal life. It was further held that there is no material on record to show that the petitioner gave a bonafide offer to the wife (opposite party no.2) and the wife refused the offer. Accordingly, the learned Revisional Court turned down such point. 6. Learned counsel for the opposite party no.2 contended that the opposite party no.2 was subjected to torture in connection with demand of dowry for which a criminal case was initiated against the petitioner in which the charge sheet has been submitted under section 498-A of the Indian Penal Code. It is further contended that when the second revision by the selfsame party is barred in view of the provision under section 397(3) of Cr.P.C., in absence of any gross illegality or perversity in the impugned orders passed by the learned Courts below, this writ petition should not be entertained. Section 397(3) of Cr.P.C. reads as follows: “397(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.” 7. Section 397(3) of Cr.P.C. reads as follows: “397(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.” 7. Law is well settled that the bar under section 397(3) of Cr.P.C. cannot be circumvented either by taking recourse to section 482 Cr.P.C. or by filing a writ petition. In case of Krishnan -Vrs.-Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, it is held that when the revision has been barred by section 397(3) of the Code, a person cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers 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. When the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. 8. After going through the impugned orders, I find that the learned S.D.J.M., Bhadrak has formulated five points and discussed the evidence of the witnesses adduced from both the sides and passed a reasoned order holding that it is an admitted fact that the opposite party no.2 is the wife of the petitioner and the opposite parties nos.3 to 5 are the children of both the petitioner and the opposite party no.2. It has also been held that the petitioner being a doctor neglected the opposite parties nos. It has also been held that the petitioner being a doctor neglected the opposite parties nos. 2 to 5 to maintain and further held that the opposite party no.2 was a jobless lady and she was not doing anything and residing along with her children at Bhadrak. It was further held that the opposite party no.2 had got no source of income of her own and the petitioner has got sufficient means and he willfully refused to maintain the opposite parties nos. 2 to 5. The learned revisional Court has confirmed the findings arrived at by the learned Magistrate. It has also considered the point relating to voluntary desertion of the opposite party no.2 and answered in the negative. 9. When there is background of torture to the opposite party no.2 by the petitioner and a criminal case has been instituted by her which has led to filing of the charge sheet, it cannot be said that in such a scenario, if the wife lives separately from the husband she would be disentitled from getting any maintenance particularly when she has got no source of income of her own. 10. Therefore, in absence of any illegality in the impugned order of maintenance awarded by the learned Magistrate which has been confirmed by the learned revisional Court, I am not inclined to interfere with the same. So far as the quantum of maintenance is concerned, section 127 of Cr.P.C. provides for the aggrieved party to file appropriate application for alteration of the maintenance amount. The petitioner is at liberty to file any such petition before the appropriate Court which will be considered in accordance with law. 11. Accordingly, the WPCRL application being devoid of merits, stands dismissed.