Ishtiyaq Ahmad Khan through Attorney Holder Mr. Wahid Ahmad Khan v. Rabia Jan
2021-12-28
SANJAY DHAR
body2021
DigiLaw.ai
JUDGMENT : SANJAY DHAR, J. 1. Petitioner has challenged order dated 04.08.2018 passed by Principal Sessions Judge, Budgam, whereby learned Sessions Judge has dismissed the revision petition filed by the petitioner against the order dated 15.02.2017 passed by Judicial Magistrate, 1st Class, Cherar-i-Sharief. Vide the aforesaid order dated 15.02.2017, the learned Magistrate has dismissed the petitioner’s application for setting aside ex-parte order of maintenance as also the application for staying the operation of aforesaid ex-parte order passed in proceedings under Section 488 of the J&K Code of Criminal Procedure. Compensatory costs of Rs. 30,000/- have also been imposed by learned Magistrate upon the petitioner vide the aforesaid order. 2. The facts giving rise to the filing of this revision petition are that respondent, who claims to be the wife of petitioner, filed proceedings under Section 488 of J&K Cr.P.C. before Judicial Magistrate 1st Class, Cherar-i-Sharief, claiming maintenance from him. It appears that petitioner stopped appearing before the learned Magistrate, as a result whereof ex-parte proceedings were initiated against him on 19.02.2014 and ultimately on 15.04.2015, the petition came to be disposed of by the Magistrate directing the petitioner herein to pay a monthly maintenance of Rs. 5000/- to the respondent. 3. Upon filing of execution petition by respondent before learned Magistrate, the petitioner filed two separate applications, one for setting aside the ex-parte order of maintenance dated 15.04.2015 and another for staying the aforesaid order. Both the applications came to be dismissed by the learned Magistrate in terms of order dated 15.02.2017. The operative portion of the aforesaid order is reproduced hereunder: “......Coming back to the facts and circumstances, the present case mentioned hereinabove the proceedings reveal that the petitioner in the instant application for setting aside ex-parte order has never caused his personal appearance before the court, nowhere the court has at any point of time taken in the execution application made by the respondent-lady for the execution of the maintenance order. Under these facts and circumstances of the case both the applications i.e., the application for setting aside the ex-parte maintenance order and the application for staying the operation of the ex-parte maintenance order are dismissed for being not maintainable under law and also for the non-appearance of the petitioner in person.
Under these facts and circumstances of the case both the applications i.e., the application for setting aside the ex-parte maintenance order and the application for staying the operation of the ex-parte maintenance order are dismissed for being not maintainable under law and also for the non-appearance of the petitioner in person. In exercise of the jurisdiction vested under section 488 clause (7) Code of Criminal Procedure compensatory costs of rupees 30,000 (thirty thousand only) are imposed on the petitioners brother which on realization by the court shall be payable to the respondent-lady and shall be paid within a period of one month from the date of this order.” 4. The aforesaid order came to be challenged by the petitioner by way of a revision petition before the Principal Sessions Judge, Budgam. The learned Sessions Judge vide the impugned order, while dismissing the revision petition, observed that petitioner has not explained the reasons as to what had prevented him from filing the revision petition within the prescribed period of limitation and it was held that petitioner has not made out a sufficient cause for condoning the delay, which according to the learned trial court was apparently unreasonable. 5. Learned counsel for the petitioner has vehemently contended that in the matters of condonation of delay in filing the proceedings, the Courts should take a liberal view and a hyper technical approach has to be avoided. According to the learned counsel, both the courts below have taken a hyper technical view of the matter and shut out the defence of the petitioner on merits. In support of his contentions, learned counsel for the petitioner has relied upon following judgments: 1. Ajit Singh Thakur Singh vs. State of Gujarat, 1981 Legal Eagle 19 (SC) 2. Mushtaq vs. State of Rajasthan, 2008 Cri. L.J. 2351 3. B.G. Shivananjappa vs. Shantha alias Ushadevi, 2004 Cri. L.J. 2455 4. State of Gujarat vs. Mohanbhai, 1998 Cri. L.J. 4425 5. Abdul Ghafoor and Another vs. State of Bihar, AIR 2012 SC 640 6. State vs. Joginder Singh and Others, 1987 Legal Eagle 16 7. M.K. Prasad vs. P. Arumugam, 2001 Legal Eagle 926 (SC) 6. I have heard learned counsel for the parties and perused the record of the case. 7.
L.J. 4425 5. Abdul Ghafoor and Another vs. State of Bihar, AIR 2012 SC 640 6. State vs. Joginder Singh and Others, 1987 Legal Eagle 16 7. M.K. Prasad vs. P. Arumugam, 2001 Legal Eagle 926 (SC) 6. I have heard learned counsel for the parties and perused the record of the case. 7. Even without going into the merits of the case, the instant petition appears to be not maintainable for the reason that petitioner through the medium of instant petition is impugning the order of learned Magistrate as well as the order of Revisional Court, which amounts to filing of second revision against the order of learned Magistrate. Sub-Section (3) of Section 435 of the J&K Code of Criminal Procedure, clearly bars a second revision petition. It reads as under: “(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 either of them.” 8. A perusal of afore-quoted provision shows that if an application of revision 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 either of them. This means that if a person has invoked the revisional jurisdiction of a Sessions Judge against an order of Magistrate, he cannot file second revision against the said order before the High Court and vice-versa. 9. In the instant case, when the Sessions Judge refused to interfere with the order of the Magistrate, the High Court’s jurisdiction has been invoked by the petitioner to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 435(3) of the Cr.P.C. is, therefore, effectively attracted and the bar cannot be circumvented by subterfuge of treating the revision petition as directed against the Sessions Judge’s order. On this ground alone, the petition is liable to be dismissed. 10. Apart from the above, what comes to the fore is that the petitioner has grossly abused the process of law by filing the instant petition as previously he had filed a petition under Section 561-A of the J&K Code of Criminal Procedure bearing No. 42/2017 impugning the order dated 15.02.2017 passed by learned Judicial Magistrate, 1st Class, Cherar-i-Sharief.
10. Apart from the above, what comes to the fore is that the petitioner has grossly abused the process of law by filing the instant petition as previously he had filed a petition under Section 561-A of the J&K Code of Criminal Procedure bearing No. 42/2017 impugning the order dated 15.02.2017 passed by learned Judicial Magistrate, 1st Class, Cherar-i-Sharief. The said petition was dismissed by this Court by a reasoned order dated 4th October, 2018. The petitioner during the pendency of the aforesaid proceedings, it appears, invoked the revisional jurisdiction of the Sessions Court, Budgam, without even disclosing that he had already approached the High Court by way of petition under Section 561-A of J&K Cr.P.C. The learned Sessions Judge declined to interfere with the order of the trial Magistrate. The petitioner by filing the instant petition has tried to test his luck once again. This is sheer abuse of process of court. 11. The consequences of the tactics that the petitioner has adopted in this case, would have led to passing of conflicting and contradictory orders by different courts or even by the same court. Had the learned Sessions Judge interfered with the order of the learned trial Magistrate in ignorance of the order passed by the High Court in the petition under Section 561-A No. 42/2017, a peculiar situation would have arisen where order of the Sessions Judge and that of this Court would have come into conflict with each other. Petitioner has not stopped here. He has filed the instant petition impugning order of the Sessions Judge as well as learned Magistrate without disclosing that he had earlier filed a petition under Section 516-A of J&K Cr.P.C. before this Court. Had the learned counsel for the respondent not brought the order dated 4th October, 2018 passed by this Court to the notice of this court, there could have been a possibility of passing of two conflicting orders on the same matter by two Coordinate Benches of the High Court. 12. The facts which emanate in the present case, show the level to which unscrupulous litigants, of which petitioner appears to be a classic example, can stoop to get the desired results. The petitioner has grossly misused and abused the process of courts.
12. The facts which emanate in the present case, show the level to which unscrupulous litigants, of which petitioner appears to be a classic example, can stoop to get the desired results. The petitioner has grossly misused and abused the process of courts. A dishonest litigant like the petitioner cannot be shown any leniency by the Courts and such elements cannot be allowed to abuse the process of Courts. Such trends need to be arrested and put down with an iron fist so that trust of the genuine litigants in the institution is maintained. 13. In view of the above, while dismissing this revision petition, exemplary costs of Rs. 50,000/- (rupees fifty thousand) are imposed upon the petitioner, which shall be deposited by him with the Registrar Judicial of this Court within a period of one month from today. Upon deposit of the costs by the petitioner, the same shall be paid to the respondent after proper verification and identification. The Registrar Judicial shall furnish a report about the deposition of costs by the petitioner and payment thereof to the respondent after one month. 14. The record of the court below be sent back. Copy of this order be sent to both the courts below.