(Prayer: This Criminal Revision Petition is filed under S.397 r/w 401 of Cr.P.C. seeking to exercise the Revisional powers under Section 397 of Cr.P.C. and call for the records in Crl. Appeal No.149/2014 and examine the legality, correctness or otherwise the maintainability of the orders dated 09.10.2015 and set aside the same by confirming the orders passed on I.A. No.II in Crl. Misc. No.153/2014 on the file of Additional Civil Judge and JMFC, Raibag by allowing this petition.)
1. Assailing the legality of the Judgment dated 09.10.2015 passed in Crl.A.No.149/2014 by the VII Addl. Dist. and Sessions Judge, Belagavi, sitting at Chikodi, allowing the appeal and thereby , setting aside the order impugned therein, with a direction to handover the minor child Tazin to the custody of the respondent mother, this petition was filed.
2. Marriage of the 1st petitioner and the respondent was solemnized on 17.10.2010. Out of the wedlock, a female child, named Tazin was born on 25.05.2012 and is in the custody of the petitioners.
3. Respondent having filed a complaint on 28.03.2014, a case in Crime No.97/2014 for the offences punishable under Ss.498A, 323, 504, 506 read with S.34 of IPC was registered against the petitioners.
4. The respondent has filed a petition under S.12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the Act ), in Crl. Misc. No.153/2014, against the petitioners. I.A.2 filed therein by her, under S.21 of the Act, seeking custody of the minor girl child Tazin was dismissed by the learned Magistrate vide Order dated 03.11.2014.
5. Said order was assailed by filing Crl.A.No.149/2014 in the Sessions Court. The appeal was allowed and an order, as above, having been passed, this petition was filed to set aside the said Order.
6. Heard learned advocates and perused the record. It has to be stated that the Appellate Court has really not appreciated and analysed the record of the case. By making a brief reference to I.A.2 filed in the Trial Court and to the objections filed and by raising a general point for consideration and by merely quoting head-notes of certain decisions, without any discussion and assigning any reason, it has abruptly concluded as follows:
12. In view of the above reasons, I am of the opinion that the applicant / mother is entitled to the custody of minor child. Thus, the appeal deserves to be allowed. Accordingly, I answer the Point No.1 in the affirmative.
7. In KAMLESH PRABHUDAS TANNA AND ANOTHER Vs. STATE OF GUJARAT, (2013) 15 SCC 263, Apex Court, dealing with the duty of the appellate court, had held as follows:
9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out.
8. The Sessions Court has duty to give reasons while reversing an order passed by the Magistrate. Without dislodging the reasons assigned by the Magistrate and recording his own reasons i.e., to allow the prayer in I.A.II filed, the impugned order has been passed.
9. Tested on the touchstone of the said principles, it is obvious that there is total lack of deliberation and there is really no appreciation of the record of the case much less the grounds raised for consideration by the learned Appellate Judge. The Court below has failed to exercise the jurisdiction vested in it, in accordance with law. The impugned order is cryptic.
Consequently, the petition is allowed and the impugned order is set aside. The case having not been decided by the learned Sessions Judge in accordance with law is remitted for fresh disposal. The Sessions Court shall decide the case expeditiously and before 09.09.2016. Both parties are directed to appear before the Sessions Court, Chikodi on 16.07.2016 and receive further orders.
All the contentions of both parties are kept open.
The interim order passed in this petition shall operate till the appeal is decided afresh by the Sessions Court.