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Pabitra Swal Singh Vs. Smt. Manikya Debi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in54(1982)CLT383; 1982CriLJ2352
AppellantPabitra Swal Singh
RespondentSmt. Manikya Debi
Cases ReferredMadhu Limaye v. State of Maharashtra
Excerpt:
.....legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - ranbir singh 1979crilj318 has contended that the petitioner could not be allowed to circumvent the statutory bar under section 397(3) by praying this court to exercise its inherent jurisdiction which should be exercised in rare and exceptional cases. it is true as submitted by the learned counsel for the opposite party, that a party may not be allowed to evade a statutory bar by circumventing his ways and asking for a relief by the exercise of the inherent jurisdiction of this court, but as has been laid down in the well-known case of madhu limaye v. state of maharashtra 1978crilj165 (supra) in rare and exceptional cases and where there..........482 of the code.2. mr. d. pattnaik. the learned counsel for the petitioner, has submitted that the learned additional sessions judge had no jurisdiction to pass the impugned order and therefore, it was an illegal order for which the bar under section 397(3) of the code would not apply to the case and even assuming that section 397(3) would be a bar to an application in revision being made to this court, this court in its inherent jurisdiction can set at naught the impugned order to prevent an abuse of the process of the court. reliance has been placed on the principles laid down in madhu limaye v. state of maharashtra : 1978crilj165 . mr. y.s.r. murty, placing reliance on the principles laid down in jagir singh v. ranbir singh : 1979crilj318 has contended that the petitioner could not be.....
Judgment:

B.K. Behera, J.

1. The petitioner, against whom an order of maintenance has been passed by a Judicial Magistrate in a proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code), assails the order dated 28-7-1981 passed by Mr. B.K. Patnaik Additional Sessions Judge. Berhampur, in the Criminal Revision preferred by him against the order of maintenance and I would quote below the impugned order:

Memo of no instruction dated 24-1-1981 is sufficient to dispose of the Revision. The matter is unnecessarily dragging on since January 1981 particularly in view of the memo.

The Revision is dismissed. No costs'. This application has been made for the exercise of the powers of this Court under Section 482 of the Code.

2. Mr. D. Pattnaik. the learned Counsel for the petitioner, has submitted that the learned Additional Sessions Judge had no jurisdiction to pass the impugned order and therefore, it was an illegal order for which the bar under Section 397(3) of the Code would not apply to the case and even assuming that Section 397(3) would be a bar to an application in revision being made to this Court, this Court in its inherent jurisdiction can set at naught the impugned order to prevent an abuse of the process of the Court. Reliance has been placed on the principles laid down in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . Mr. Y.S.R. Murty, placing reliance on the principles laid down in Jagir Singh v. Ranbir Singh : 1979CriLJ318 has contended that the petitioner could not be allowed to circumvent the statutory bar under Section 397(3) by praying this Court to exercise its inherent jurisdiction which should be exercised in rare and exceptional cases.

3. While the Criminal Revision before the learned Additional Sessions Judge was pending at the stage of hearing the learned Advocate for the petitioner put in a memorandum on 24-1-1981 stating thus :

The parties have since gone to the Civil Courts for a decision. The party has taken away the file and has not come back.

The undersigned therefore hereby reports no instructions in the matter.' It is important to note that he had not stated therein that he would not press the revision or that the revision might be dismissed because the parties had approached the civil Court for redress. 24-1-1981 was a date fixed for hearing. After the aforesaid memorandum was put in, the learned Additional Sessions Judge passed the following order on that day__

Advocate for the petitioner files a memo stating that the party has taken away the file and has not come back, hence he reports no instruction.

Engaged in hearing arguments in S C. 33/79(G). Call on 17-2-1981 for hearing.

Thus the revision was not disposed of because of the memorandum filed by the learned Advocate for the petitioner and it could not be dismissed on its basis and the matter stood adjourned to 17-2-1981 for hearing. For some reasons or the other, the matter stood posted to seven dates for hearing thereafter till 28-5-1981 on which day even in spite of absence of the petitioner, the revision was posted to 24-6-1981 for hearing. The learned Advocate for the opposite party was present on that day. The learned Additional Sessions Judge had on that day taken note of the memorandum of no instructions filed on 24-1-1981. Thus even on that day, the learned Additional Sessions Judge did not dispose of the matter because of the memorandum filed by the learned Advocate for the petitioner and in my view, rightly adjourned the matter for hearing as a Criminal Revision was not to be dismissed merely for the default of the petitioner. On 24-6-1981 and 9-7-1981, on applications being made on behalf of the opposite party for adjournments, the hearing was adjourned. On 14-7-1981. a date fixed for hearing, the learned Additional Sessions Judge passed the following order:

I am under orders of transfer. Engaged in clearing of arrear judgments. Call on 28-7-1981 for hearing.

It was thus that the matter stood posted to 28-7-1981 for hearing and the successor Additional Sessions Judge dismissed the Criminal Revision in the manner extracted above. There could be no doubt that the learned Additional Sessions Judge completely went wrong in passing such an order on the basis of a memorandum of no instructions filed as far back as on 24-1-1981 by holding that the memorandum would be sufficient to dispose of the revision. The learned Advocate for the petitioner had stated that he had no further instructions in the matter. In my view, such an order which could not be passed under the law, had been passed without jurisdiction and therefore, the order would be non est in the eye of law in which case even the statutory bar under Section 397(3) could not be called in aid by the opposite party. Apart from this question, however, as in my view, the matter pending before the learned Additional Sessions Judge had been disposed of illegally and without jurisdiction, it must be said that there had been an abuse of the process of the court. It is true as submitted by the learned Counsel for the opposite party, that a party may not be allowed to evade a statutory bar by circumventing his ways and asking for a relief by the exercise of the inherent jurisdiction of this Court, but as has been laid down in the well-known case of Madhu Limaye v. State of Maharashtra : 1978CriLJ165 (supra) in rare and exceptional cases and where there has been an abuse of the process of the court, the inherent jurisdiction of this Court under Section 482 of the Code can be exercised, even if there be otherwise a statutory bar, in the interests of justice. On the principles laid down in Madhu Limaye's case. I find that it is a' fit case where this Court should exercise its inherent jurisdiction and set aside the impugned order to prevent the abuse of the process of the court.

4. In the result, the application is allowed, the impugned order is set aside and the learned Additional Sessions Judge, Berhampur, is directed to dispose of the Criminal Revision in accordance with law.


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