Abdul Hamid Sheikh v. Musstt Anna Bibi D/o Abdul Barek Sk
2019-06-28
ACHINTYA MALLA BUJOR BARUA
body2019
DigiLaw.ai
JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. AM Khan, learned counsel for the petitioner. Also heard Mr. M Islam, learned counsel for the respondent. 2. The petitioner and the respondent herein were married under the Shariat Law and according to the respondent the petitioner subjected her to torture in the name of dowry and as a result she and her two minor children were driven out from her matrimonial home, requiring the respondent to take shelter in her parental home. In the circumstances, the petitioner preferred Misc.Case No.655/2010 in the Court of the learned Judicial Magistrate 1st Class, Dhubri praying for maintenance under Section 125 of the Code of Criminal Procedure (for short, Cr.P.C.). 3. By the Judgment and Order dated 26.08.2011, a maintenance of Rs.600/- per month plus Rs.300/- per month each for the three children was awarded by the learned Magistrate. Subsequently the respondent preferred another application being Misc.Case No.525/2013 under Section 127 Cr.PC for enhancement of the maintenance. The claim for enhanced maintenance was contested by the petitioner by filing written statement. 4. By the Judgment and Order dated 27.01.2017, the maintenance was enhanced to Rs.2000/- each to the petitioner and the three children from the date of the order. 5. Being aggrieved, a revision was preferred by the petitioner before the learned Sessions Judge, Dhubri which was registered as Crl.Rev.Pet No.20/2017. By the order dated 07.11.2017, the revision preferred by the petitioner stood dismissed and the order of the learned Magistrate under Section 127 Cr.P.C., was upheld. 6. Against the orders dated 07.11.2017 of the learned Sessions Judge in Crl.Rev.Pet No.20/2017 and the order dated 27.01.2017 of the learned Magistrate in Misc. Case No.525/2013, the present revision petition has been preferred under Section 482 read with Section 401 of the Cr.P.C for setting aside both the orders. 7. While taking up the matter for its admission, an objection on the maintainability of the revision petition itself has been raised by the respondent on the ground that the present revision is a second revision against the same order of the learned Magistrate although it may have been filed in the guise of a petition under Section 482 and 401 of the Cr.P.C. 8.
Section 397 Cr.P.C inter alia, provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order passed by it. 9. Section 397 Cr.P.C clearly provides a discretion to a prospective revision petitioner to either prefer the revision before the High Court or before the Sessions Court. If the discretion is exercised to prefer the revision before the Sessions Judge, a question that would arise is as to whether a subsequent revision would be maintainable against the order of the learned Magistrate or against the order of the learned Sessions Judge in revision before the High Court either under Section 482 or under Section 401, or both of the Cr.P.C. The aforesaid aspect has been considered by the Supreme Court in its pronouncement in Deepti Alias Arati Rai Vs. Akhil Rai and Others, (1995) 5 SCC 751 . In paragraph 4 of the aforesaid judgment it has been held as follows: "4. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code." 10. In view of such proposition being laid down and there being a bar on the maintainability of a second revision petition against the same order, we are of the view that even by invoking the provisions of Section 482 or Section 401, the second revision filed against the order of the learned Magistrate is not maintainable. 11. Accordingly this criminal petition being essentially a petition assailing the order of the learned Judicial Magistrate 1st Class Dhubri in Misc. Case No.655/2010 which has already been given a consideration by the learned Sessions Judge in Misc. Case No.525/2013 is not maintainable as a second revision petition under Section 482 read with Section 401 of the Cr.P.C. 12. Criminal petition accordingly stands dismissed.