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1968 Supreme(Del) 94
High Court Of Delhi
RAM - Appellant
Versus
NARAINI - Respondent
CRIMINAL APPEAL 12 of 1968
Decided On : 06/19/1968
CHABILDAS, S.Malhotra
Orders made under section 488, Criminal Procedure Code, are not revisable under section 93 of the Himachal Pradesh Panchayat Raj Act.
Headnote:
MAINTENANCE - SECTION 488, CRIMINAL PROCEDURE CODE - REVISION - SECTION 93, HIMACHAL PRADESH PANCHAYAT RAJ ACT - ORDER MADE UNDER SECTION 488, CRIMINAL PROCEDURE CODE, NOT REVISABLE UNDER SECTION 93 OF THE HIMACHAL PRADESH PANCHAYAT RAJ ACT - ORDER OF MAGISTRATE REVIEWING EARLIER ORDER WITHOUT JURISDICTION - VALID - ORDER OF SESSIONS JUDGE REJECTING REVISION AGAINST MAGISTRATE'S ORDER - VALID.
Fact of the Case:
Petitioner's wife, Smt. Naraini, approached the Nyaya Panchayat for maintenance under section 488, Criminal Procedure Code. The Nyaya Panchayat ordered the petitioner to pay Rs. 80 per month to Smt. Naraini on the condition that she lives in the house of her in-laws. The petitioner challenged this order in the Court of the Magistrate 1st Class (T. O.), Bilaspur, under section 93 of the Himachal Pradesh Panchayat Raj Act. The Magistrate allowed the revision and dismissed Smt. Naraini's application. Smt. Naraini then approached the Magistrate's Court again, arguing that the previous order was a nullity and should be ignored. The Magistrate agreed and declared that the application under section 488 did not lie. The petitioner then approached the Court of the Sessions Judge, Simla, with an application for revising the Magistrate's order. The Sessions Judge rejected the application.
Finding of the Court:
The Court held that the order of the Magistrate dated November 30, 1965, was without jurisdiction and therefore a nullity. The subsequent order of the Magistrate dated January 27, 1967, as also that of the learned Sessions Judge on revision, were therefore valid. The Court also held that the order of the Nyaya Panchayat dated April 7, 1965, did not suffer from any grave or serious legal infirmity and therefore could not be interfered with under Article 227 of the Constitution. The Court further held that the amount of maintenance fixed by the Nyaya Panchayat was not excessive and that there was evidence on record to justify the amount.
Issues: 1. Whether the order of the Magistrate dated November 30, 1965, was without jurisdiction and therefore a nullity? 2. Whether the subsequent order of the Magistrate dated January 27, 1967, as also that of the learned Sessions Judge on revision, were valid? 3. Whether the order of the Nyaya Panchayat dated April 7, 1965, suffered from any grave or serious legal infirmity? 4. Whether the amount of maintenance fixed by the Nyaya Panchayat was excessive and whether there was evidence on record to justify the amount?
Ratio Decidendi: 1. The right of revision is a statutory right and can only be exercised if there is a specific provision in the statute creating such a right. In the present case, there was no provision in the Himachal Pradesh Panchayat Raj Act allowing for the revision of orders made under section 488, Criminal Procedure Code. Therefore, the order of the Magistrate dated November 30, 1965, was without jurisdiction and therefore a nullity. 2. The subsequent order of the Magistrate dated January 27, 1967, merely ignored the earlier order which was void for want of inherent jurisdiction. Therefore, the order of the Magistrate dated January 27, 1967, as also that of the learned Sessions Judge on revision, were valid. 3. The order of the Nyaya Panchayat dated April 7, 1965, did not suffer from any grave or serious legal infirmity. The condition imposed by the Nyaya Panchayat that Smt. Naraini live in the house of her in-laws did not harm or prejudice the petitioner and therefore could not be challenged by him. The amount of maintenance fixed by the Nyaya Panchayat was not excessive and there was evidence on record to justify the amount.
Final Decision: The petition was dismissed.
( 1 ) THE facts giving rise to this revision may briefly be stated. Smt. Naraini, wife of Siri Ram (petitioner in this Court), approached the Nyaya Panchayat at Chandpur, Parnaga and Tehsil Sadar District Bilaspur, for maintenance against her husband under section 488, Criminal Procedure Code. The Panchayat is stated to have made some order of which the parties before me have not cared to produce a copy in this Court. But be that as it may, a Full Bench of the Nyaya Panchayat on April 7, 1965, made an order directing Siri Ram to pay a sum of Rs. 80. 00 per month to Smt. Naraini on the condition that she lives in the house of her in-laws and not in that of her parents.
( 2 ) AGAINST the order of the Full Bench of the Nyaya Panchayat, Siri Ram preferred a revision in the Court of the Magistrate 1st Class (T. O.), Bilaspur, under section 93 of the Himachal Pradesh Panchayat Raj Act. That Court allowed the revision and dismissed the application presented by Smt. Naraini under section 488, Criminal Procedure Code. It appears that in the meantime the Judicial Commissioner s Court ruled in Dhiana v. Smt. Ayodhia, (Criminal Reference No. 20 of 1965) that orders made under section 488, Criminal Procedure Code, were not revisable under section 93 of the Himachal Pradesh Panchayat Raj Act. The legal position having been so declared by the Court of the Judicial Commissioner, Smt. Naraini again approached the Magistrate s Court with a prayer that the previous order of the learned Magistrate dated November 30, 1965, was a nullity and should, therefore, be ignored and the order made by the Full Bench of Nyaya Panchayat be revived. It may be pointed out that after the earlier order of the learned Magistrate dated November 30, 1965, proceedings under section 488, Criminal Procedure Code. were actually initiated in the Court of the Magistrate and it is in the course of these proceedings that this application was made. The learned Magistrate 1st Class on January 27, 1967, allowed Smt. Naraini s prayer and declared that the application under section 488, as initiated in the Court of that Magistrate, did not lie and rejected the same. Siri Ram then approached the Court of the Sessions Judge, Simla, with an application for revising the order of the learned Magistrate dated January 27, 1967. This application was rejected by the learned Sessions Judge on November 9, 1967, in a fairly exhaustive and detailed order. According to the learned Sessions Judge, the order of the learned Magistrate dated January 27, 1967, reviewing the earlier order of November 30, 1965 was not tainted with any jurisdictional infirmity and indeed that order rightly declared the earlier order to be without jurisdiction in view of the decision of the learned Judicial Commissioner in Dhiana s case.
( 3 ) IT is against this order of the learned Sessions Judge that the present revision has been presented in this Court.
( 4 ) SHRI Sushil Malhotra, the learned counsel for the petitioner (Siri Ram), has very trankly conceded that if the earlier order of the learned Magistrate dated November 30, 1965, is to be treated as one a wanting in inherent jurisdiction then the subsequent order of the Magistrate dated January, 27, 1967, as also that of the learned Sessions Judge on revision, cannot successfully be challenged. He has, however, submitted that the order dated November 30, 1965, cannot be considered to be tainted with want of inherent jurisdiction and, therefore, however illegal it may be, it cannot be considered to be a nullity. In support of this argument he has cited a single Bench decision of the Kerala High Court in P. Kannan hunhimangalam v. The Food, Inspector Cannanore Municipality. In that case on an application under section 417 (3) of the Code of Criminal Procedure, notice was issued to the opposite party which was heard and the Court found it to be a fit one to condone the delay. Later, the same question having been agitated on the ground that section 5 of the
