| SooperKanoon Citation | sooperkanoon.com/354021 |
| Subject | Criminal |
| Court | Mumbai High Court |
| Decided On | Jul-30-1979 |
| Judge | Waikar, J. |
| Reported in | 1980CriLJ601 |
| Appellant | Arunkumar Surajmal Jain |
| Respondent | Chandanbai Rupchandsa JaIn and ors. |
Waikar, J.
1. This Criminal Revision Application filed by the original opponent (husband) is directed against an order passed by the Judicial Magistrate, First Class, Malkapur, allowing the application of the present non-applicant No. 1 (wife) filed under Section 125 Cr. P. C. 1973 (called hereinafter as the Code) and granting her maintenance at the rate of Rs. 500/- per month.
2. Opponent No. 1 (wife) filed the said application under Section 125 of the Code claiming herself to be the legally wedded wife of the present applicant. She alleged that she was married sometime in the month of April 1971, but within a fortnight thereafter her husband started ill-treating her and she was brought back by her brother to Malkapur. It was alleged that her husband started ill-treating her as an Ambassador car promised by her parents during marriage was not given to her husband. After she was reached back after one year in the month of Aug. 1972, her husband refused to accept her. It was also submitted that her husband had performed a second marriage with one Pushpabai and as such she was entitled to maintenance under the provisions of Section 125 of the Code.
3. The present applicant (husband) denied all these allegations. When the case was fixed for evidence on 30th Jan. 1979 this applicant was not present, but was represented by his pleader Shri Rawat. The application presented by Shri Rawat for adjournment was rejected. Shri Rawat, however, cross-examined all the witnesses examined by non-applicant No. 1. After hearing arguments on 31st Jan. 1979 the learned Magistrate announced the impugned order.
4. Shri K. H. Deshpande, the learned Counsel for non-applicant No. 1 (wife), raised two preliminary objections, (1) In view of Rule 14, Chap. XXVI, of the Bombay High Court Appellate Side Rules, 1960, which has neither been amended, nor deleted even after coming into force of the Code, in the absence of special circumstances, the High Court could not entertain this application, when an application could have been made before the Sessions Court, and (2) An application has already been filed under Section 126 (2) of the Code by the present applicant before the Judicial Magistrate, First Class, for setting aside the impugned order treating the same as an ex parte order and the same is pending consideration. Since the present applicant is already pursuing his other legal remedies, this Court need not exercise its revisional jurisdiction, particularly in view of the facts and circumstances of the present case.
5. Rule 14 of Chap. XXVI of the Bombay High Court Appellate Side Rules, 1960 is as under:
14. In the absence of special circumstances the High Court will not entertain an application for a revision where an application for revision might have, but has not been made to a lower revisional Court.
6. Shri Manohar, the learned Counsel for the applicant, relied upon State of Gujarat v. Pyarekhan where in respect of this very rule, that is, Rule 14 of Chap. XXVI of the Bombay High Court Appellate Side Rules, 1960, Raju J. had observed that this rule is only a statement of policy of the High Court. There can be no quarrel with, this proposition. The practice envisaged by this rule did not oust the jurisdiction of the High Court to entertain a revision. If an application was made directly to the High Court and the rule was issued, it could not be dismissed on the ground that no application has been made to the Sessions Court. A departure from this rule of practice never constituted any illegality. In the instant case also since a rule has already been issued by this Court in the matter and the same was set down for hearing it cannot be dismissed only on the ground that the said rule has not been observed.
7. It may, however, be considered whether the said rule, which still exists and has not been amended or deleted after coming into force of the Code, is now otiose and obsolete. Such a rule of practice of first moving the Sessions Judge before moving the High Court was framed by several other High Courts also under the old Code of Criminal Procedure. In Puvvulla Abbulu v. State relied upon by Mr. Manohar, it was held that such a rule was inconsistent with the scheme of the Code under Sections 397 (3) and 399 (3) of the Code.
8. Now even under Section 435 of the old Code the Sessions Judge was concurrently empowered with the High Court to call for and examine the records. However, except in limited class of cases such as improper discharge of an accused or improper dismissal of a complaint, the Sessions Judge could only report the result of his examination to the High Court for orders. The refusal of the Sessions Judge to make reference to the High Court did not exhaust the jurisdiction of the High Court to directly entertain revision application. Even though under the old Code nothing debarred a person from approaching the High Court directly without approaching the Sessions Judge in the first instance, this rule was framed as it was thought it would be less expensive for the party to approach the Sessions Judge and request him to make a reference to the High Court and also save time of the High Court. Any party aggrieved by the order of the Sessions Judge could further approach the High Court by making an application under the old Code. The change effected under the Code by Sections 397 (3) and 399 (3) is that after an application is made to the Sessions Judge, no further application by the same person shall be entertained by the High Court and the decision of the Sessions Judge thereon shall be final. The Andhra Pradesh High Court, therefore, in the ruling cited above held that in view of this change in the law, an insistence by a rule of practice that a person should approach the Sessions Judge and not the High Court would result in the destruction of the right of that person to move the High Court under Section 397 of the Code. The said rule was, therefore, held inconsistent with the scheme of the Code.
9. Now this was the only consideration which prevailed namely, the destruction of the right of the party to approach the High Court because no further revision under the present Code is contemplated and an order of the Sessions Judge for him becomes final and conclusive. The prejudice or hardship likely to result to the other party has not been taken into account by their Lordships. Under the old Code if the Sessions Judge rejected the application and declined to make any reference to the High Court, the unsuccessful petitioner could still approach the High Court by filing a revision application. If the reference was made by the Sessions Judge, the other party had an opportunity to be heard by the High Court in the matter. Under the Code if the party is required first to approach the Sessions Court, this right is no doubt destroyed, but in case he chooses to approach the High Court directly, the other party is denied an opportunity of being heard by the two Courts, since Sections 397 (3) and 399 (3) of the Code do not debar the other party from approaching the High Court against the adverse order passed by the Sessions Judge, though the bar is only for the person moving the Sessions Judge. The convenience of the parties, reducing pressure of work in the High Court and quick and final decision of matters are still good considerations and it cannot be said that the said rule which no doubt is a rule of practice and policy, is rendered otiose and meaningless.
10. This very question whether there is a bar for an aggrieved party in bypassing the Sessions Judge and invoking the revisional jurisdiction of the High Court came up for consideration in a later ruling before Kerala High Court reported in Joseph Abraham v. Thankarnma ILR (1975) Ker 239. Dissenting from the view of Andhra Pradesh High Court in Puvvulla Abbulu v. State (cit supra) their Lordships observed:
The introduction of Section 399 alters the practice hitherto followed. The said section enacts that the Sessions Judge can exercise all or any of the powers exercisable by the High Court in revision under Section 400 (1) as provided for in Sub-section (1) of Section 399. Sub-section (3) of the section provides that the order of the Sessions Judge will be final for the party who moves him. The fact that the orders of the Sessions Judge are made final by this sub-section clearly indicates the intention of the Legislature to make the Sessions Judge as far as possible the final court of revision. The finality of the order of the Sessions Judge attaches only in relation to the person who or on whose behalf the Sessions Judge was moved, which means that the decision of the Sessions Judge in a revision cannot be final for the person aggrieved by it. In other words, the concurrent findings of the Sessions Judge and the Courts below become final while in cases where the Sessions Judge reverses the order of the Court below in revision, the defeated party is not barred to move the High Court under Section 399 (3). Since full revisional power is conferred on the Sessions Judge and the High Court. Section 397 (3) has to be read with Section 399 (3). These two sections should co-exist. A harmonious construction of these two sections indicates that legislative intent is to make the Sessions Judge, as far as possible, the final court of revision.
Their Lordships further observed:
The object of Section 399 appears to us to be to lighten the work of the High Court, to make litigation cheap, to discourage indiscriminatory resort to revision in the High Court and to allow parties to approach Courts nearer to them for redress.
We have given our anxious consideration to the question involved in this case. Anxious, because by this decision we will be denying an opportunity to parties to move this Court direct and to get an authoritative pronouncement from this Court and also to get the services of eminent lawyers practising in the High Court. We do not think this apprehension is well-founded. We are not denying any party the benefits of this Court's decision in cases where there is a conflict of decisions between the trial Court and the Sessions Judge. The aggrieved party can again come to this Court. Section 399 (3) has made the order of the Sessions Judge final, and to allow a party to come to this Court direct would be to completely defeat the purpose of that section. If every party comes to this Court direct, ignoring the Sessions Judge, then Section 399 (3) becomes unnecessary. That is not the object of the Section. Section 399 (3) bears out the object with which it was enacted and that is to make the order passed by the Sessions Judge confirming the order of the Magistrate, final.
11. The view expressed by the Kerala High Court in Joseph's case is based on a comprehensive approach of the problem taking into account the purpose of enactment of Sections 397, 399 and 401 of the Code and a harmonious construction thereof. I am, therefore, inclined to accept the above view and hold that Rule 14 of Chap. XXVI of the Bombay High Court Appellate Side Rules, 1960 is not effete and purposeless and an aggrieved party cannot directly invoke the revisional jurisdiction of this Court leap flogging the Sessions Judge.
12. So far as the second objection is concerned, the applicant no doubt is pursuing his other remedy provided under the proviso to Section 126 (2) of the Code before the Magistrate and Mr. K. H. Deshpande appearing for non-applicant No. 1 rightly relied upon State of Mysore v. Gousiddin where also a revision application was filed without availing of the provisions of setting aside the ex parte order and this is what was observed in this connection:
The latter part of the proviso made it incumbent on the husband in this case to have applied to the Magistrate, that too within three months from the date of the order viz. 31-8-1970, setting out sufficient cause or ground for his remaining absent on 11-8-1970 and requesting for setting aside of the order now in question. When the law specifically lays down a particular procedure to be adopted it has to be complied with before an aggrieved person proceeds to invoke the revisional jurisdiction of the higher courts. In view of the failure of the husband to take steps as narrated above, i, e. to file an application before the said Magistrate within three months praying for setting aside the order now in question, the learned Sessions Judge could not have, in law, entertained the revision petition filed by the husband.
13. It may be pointed out that what is being invoked here is a discretionary power of the Court and this is what their Lordships of the Supreme Court have observed in Pranab Kumar Mitra v. State of West Bengal : 1959CriLJ256 with respect to the revisional jurisdiction of the High Court:
In the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rule of criminal jurisprudence.
In the instant case, since the present applicant is already pursuing his other remedy under Section 126 (2) of the Code for setting aside the said ex parte order, the present revision application is untenable and the submission made by Shri K,, H. Deshpande must prevail.
14. What was vehemently submitted by Mr. Manohar, the learned Counsel for the applicant, was that the learned Magistrate has acted in flagrant contravention of the provisions of Section 126 (2) of the Code inasmuch as he recorded the evidence in the matter in the absence of the applicant (husband) without dispensing with the personal attendance of the applicant.
15. Now Section 126 (2) of the Code with which we are concerned is in these terms:
126 (2) 'All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
16. Shri Manohar then placed reliance upon the observations of the Supreme Court in Nand Lal Misra v. Kanhaiya Lal Misra : 1960CriLJ1246 to the following effect:
Under that Sub-section (Section 488 (6) of the old Code), all evidence under that Chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases. The word 'all' with which the sub-section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader.
The facts of that case show that before issuing a notice to the opponent a preliminary enquiry was conducted by the learned Magistrate under Section 488 of the old Cr. P. C. and while criticising such a queer unwarranted procedure not provided for in the section, their Lordships of the Supreme Court only emphasized and restated the requirement of Section 488 (6) of the old Code.
17. I was referred by Shri Manohar to Anil Ranjan Sen v. Smt. Anuprama Sen AIR 1959 Tri 26. It appears that the entire evidence in that case was recorded in the absence of the respondent (husband) but in the presence of his counsel. Attention of the Magistrate was drawn to this lacuna only during arguments, but the same was ruled out as no prejudice was caused to the other party. On reference being made by the Sessions Judge, their Lordships observed in this case as under:
The direction in Sub-section (6) is peremptory and no presumption or inference can arise in the absence of either an application by the respondent for dispensing with his presence or the order of the Court dispensing with such presence. It is not possible to import any other considerations than those which are permitted by the plain language of that sub-section. Where there is a failure to comply with the provisions of Sub-section (6), such an irregularity on the part of a Magistrate is not a mere irregularity but an illegality which vitiates the proceedings.
With respect I think that on plain language of the section such an interpretation is not warranted. In a later decision of the Punjab High Court reported in Joginder Singh v. Bibi Raj Mohinder Kaur AIR 1960 Punj 249 relied upon by Shri K., H. Deshpande,' it was observed thus:
Where in proceedings under Section 488 the evidence was recorded in the absence of the husband but in the presence of his counsel the mere absence of a formal order dispensing with the personal attendance of the husband is not per se fatal to the validity of the proceedings. In order to attack the validity of such proceedings it must be shown that the husband has been prejudiced and the taking of evidence in the absence of the husband, but in the presence of his counsel has in fact resulted in some failure of justice.
Section 488 (6) Criminal Procedure Code, is not mandatory. The person whose liability to maintain is enforced by resort to Section 488 is not strictly a person accused of a crime and the considerations which apply to the construction of the provisions dealing with the trial of persons accused of crimes are hardly applicable to the interpretation of Section 488.
The use of the word 'shall' does not always necessarily imply mandatory nature of the provisions, in the sense that non-compliance with it must necessarily and by itself be fatal. The context in which the word 'shall' is used and the purpose and object thereof has to be taken into account. An enactment in form mandatory might in substance be directory. The use of the word 'shall' does not conclude the matter. These and other rules are only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.
With respect, I think this is the proper and correct interpretation of the proviso to Section 126 (2) of the Code. I accordingly hold that the proceedings in the present case are not vitiated merely because the evidence of non-applicant No. 1 (wife) and her witnesses was recorded in the absence of the applicant (husband) but in the presence of the advocate.
18. Now coming to the facts of the present case the application was filed on 13-3-1978 and a notice was issued returnable on 10-4-1978. As the notice was not returned a fresh notice returnable on 10-5-1978 was directed to be issued. This notice was again returned unserved. An application was, therefore, made on 26-4-1978 for issue of a notice by registered post, which was allowed. As this notice again could not be served, an application was made on 25-5-1978 for issue of a bailable warrant of arrest. As this bailable warrant of arrest also proved to be infructuous, a prayer for issue of non-bailable warrant of arrest was made on 20-6-1978 and the prayer was allowed. Under a non-bailable warrant of arrest this applicant was produced before the Magistrate on 10-10-1978. An application under Section 482 of the Code was made by the applicant on 7-11-1978 praying for stay of those proceedings till the decision of Criminal Case No. 34 of 1978 which was instituted by the brother of non-applicant No. 1 for the offence of bigamy punishable under Section 494 I. P. C. This application was rejected and at long last present applicant filed a vague, evasive and a sketchy written statement to the allegations which were as elaborately made by present non-applicant No. 1 in her petition. This is what he has stated in his written statement ;
1. That the allegation made in paras 1 to 7 are all denied. They are all false allegations and the applicant under law is not entitled to maintenance as prayed by her in her application.
2. That the applicant has no right of maintenance. It is also submitted that N. A. has no sufficient means to maintain anybody.
On 12-1-1979 when the matter was fixed for hearing the present applicant and his counsel both were absent and the case was fixed for recording of evidence on 30-1-1979 on which, date, though the case was called several times none appeared for this applicant and the evidence of one witness Babulal on behalf of non-applicant was recorded by the Magistrate. Thereafter Shri Rawat who was appearing for this applicant appeared and filed an application for adjournment accompanied by a medical certificate. When this application was rejected by the Magistrate, Shri Rawat did not report no instructions, but participated in the proceedings, cross-examined Babulal, who was already examined and also cross-examined the other witnesses examined on that date by non-applicant No. 1. At the end of the proceedings also he never pressed for time to produce his own witnesses and the matter was, therefore, posted for argument on 31-1-1979, It was on 31-1-1979 that Shri Rawat made another application for adjournment, but the same was refused and after hearing arguments, the learned Magistrate passed the impugned order.
19. Now, Section 126 (2) of the Code does not say that the Magistrate must record a finding or a formal order that he was dispensing with the personal attendance of the party. It is, therefore, idle to contend that merely because the Magistrate did not mention that the personal attendance of the applicant (husband) was dispensed with on 30-1-1979 the proceedings of that day are vitiated. Shri K. H., Deshpande, the learned Counsel for non-applicant No. 1, therefore, rightly submitted that there was no infirmity in the procedure that was followed by the learned Magistrate, I find that Shri Rawat appearing for the applicant (husband) cross-examined non-applicant No., 1 and her witnesses by putting all relevant questions to them. The cross-examination of the witnesses was conducted not by a layman, but by his advocate and it was a purposeful cross-examination. It is pertinent to note that the applicant (husband) was represented by two advocates before the Magistrate. Under the circumstances, I find that there was no prejudice caused to the applicant because evidence of the non-applicant No. 1 and her witnesses as recorded in his absence on 30-1-1979 did not suffer from any infirmity or illegality.
20. The proviso to Section 126 (2) again does not require that the Magistrate must first record reasons for his satisfaction before he decides to proceed ex parte in the matter. It is enough if such satisfaction viz. that the person is wilfully avoiding service or wilfully neglecting to attend the Court is writ large on the record and reflected in the final order that is made. The question here is whether the Magistrate really proceeded ex parte on 30-1-1979 against this applicant. As pointed out above, the applicant was represented by his counsel Shri Rawat who did participate in the proceedings. The matter was thus proceeded with in the presence of his pleader and if dispensation of the personal attendance of the applicant is presumed, then it cannot be said that the Magistrate proceeded ex parte or in the absence of the applicant. So far as the proceedings of 31-1-79 are concerned, the matter was fixed for the evidence of the applicant, but Shri Rawat again made an application for adjournment. The same was rejected. Though he did not report no instructions, it appears he did nothing and the Magistrate after hearing the arguments on behalf of non-applicant No. 1 passed the final order the same day. If the Magistrate, therefore, proceeded with the matter ex parte on 31-1-1979, the record, the facts and circumstances of the case amply demonstrate that the Magistrate was satisfied that the applicant was wilfully neglecting to attend the court. The applicant has also filed an application for setting aside ex parte order under the proviso to Section 126 (2) of the Code. The present revision as stated above is untenable.
For all these reasons the revision application is dismissed. Rule discharged