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Bhagat Singh Vs. Smt. Parkash Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1973CriLJ719
AppellantBhagat Singh
RespondentSmt. Parkash Kaur and ors.
Cases ReferredParameswara Moothar v. Balameenakshi
Excerpt:
.....of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order......: air1969ker108 . with all respect i am of the opinion that this is the correct view and that the learned magistrate had the jurisdiction to make the enhancement in the maintenance allowance effective from the date when it was asked for.4. it is next urged on behalf of the petitioner that even if the learned magistrate had the jurisdiction to direct the payment of the maintenance allowance at the enhanced rate with effect from the 19th of september, 1967, he should not have done so and should have, on the other hand, allowed his order to take effect from the date from which it was made. with this contention i find myself in agreement. as pointed out by hegde, j. in air 1958 mys 190 : 1958 cri lj 1522 (supra) an order of that type should ordinarily be effective only from its date and.....
Judgment:
ORDER

A.D. Koshal, J.

1. By his order dated the 21st of December, 1956, Shri H.K. Lall, Magistrate 1st Class. Amritsar. directed the petitioner under Section 488 of the-Code of Criminal Procedure to provide a monthly allowance of Rs. 50/- to his wife Shrimati Parkash Kaur and to his two minor children from her, namely, a son named Dhir Singh and daughter named Bhiro, all three of whom are respondents to the petitioner before me. On the 19th of September, 1967, the three respondents made an application under Section 489 of the Code for enhancement of the maintenance allowance from Rs. 50/- to Rs. 150/- per mensem. That application was allowed by Shri J.S. Bhullar, Judicial Magistrate 1st Class. Amritsar, who directed that maintenance at the enhanced rate would be payable from the date of the application, i.e. the 19th of September, 1967. A petition for revision of the order passed by Shri Bhullar was made by the petitioner to the Sessions Court. Amritsar but was dismissed on the 17th of November, 1970 by Shri M.L. Mirchia. Additional Sessions Judge, Amritsar, and that is why the petitioner has come up in revision to this Court.

2. It is common ground between the parties that when maintenance allowance for the three respondents was fixed by Shri H.K. Lall in the year 1956, the petitioner was drawing a salary of Rs. 200/- per mensem only which had, over the years, risen to Rs. 522/- per mensem in 1968. It is further admitted on all hands that the petitioner owns 99 kanals odd of land, a considerable portion of which is canal and tubewell irrigated. The prices of commodities in general have gone up manifold during the last decade and while the income of the petitioner from his land has risen proportionately, the respondents need more money to make both ends meet. While the necessity for a reasonable increase in the maintenance allowance awarded in 1956 is thus patent, the capacity of the petitioner to bear such increase is also undoubted. I cannot in these premises concur with learned Counsel for the petitioner that the enhancement allowed by Shri Bhullar is excessive either because of the petitioner not having the capacity to pay it or for the reason that it is more than the respondents' need.

3. The learned Additional Sessions Judge turned down a contention raised on behalf of the petitioner that Section 489 of the Code of Criminal Procedure did not permit an increase in the monthly allowance to take effect from the date when it is asked for and that it can be awarded only prospectively. The contention has been repeated before me and support for it is sought in J.H. Amroon v. Miss R. Sassoon AIR 1949 Cal 584 Blank J., who decided that case, held that Sub-section (2) of Section 488 of the Code which runs thus-

488. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

could not operate in the case of an order under Section 489 whrein it was not repeated and that an order of that type could not be made so as to take effect retrospectively. The weight of authority, however, is against the view expressed by Blank, J. In AIR 1958 Mys 190 : 1958 Cri LJ 1522 K.S. Hegde, J. (now a Judge of the Supreme Court) held that Section 489 has no independent existence and must be considered as a part of and read as a proviso to Section 488(1) so that Sub-section (2) of Section 488 would apply as mush to an order passed under Sub-section (1) thereof as to an order passed under Section 489. This was also the view taken by T.C. Raghavan, J. in Parameswara Moothar v. Balameenakshi : AIR1969Ker108 . With all respect I am of the opinion that this is the correct view and that the learned Magistrate had the jurisdiction to make the enhancement in the maintenance allowance effective from the date when it was asked for.

4. It is next urged on behalf of the petitioner that even if the learned Magistrate had the jurisdiction to direct the payment of the maintenance allowance at the enhanced rate with effect from the 19th of September, 1967, he should not have done so and should have, on the other hand, allowed his order to take effect from the date from which it was made. With this contention I find myself in agreement. As pointed out by Hegde, J. in AIR 1958 Mys 190 : 1958 Cri LJ 1522 (Supra) an order of that type should ordinarily be effective only from its date and that existence of special circumstances must be established if retrospective effect is to be given to it. As in that case, no such circumstances have been brought to my notice in the instant case and I would consequently hold that the order of the learned Magistrate should not have been given retrospective effect.

5. In the result I accept the petition in part and while leaving intact the enhancement made by the two Courts below in the rate of the monthly allowance awarded to the respondents direct that it shall be effective as from the 29th of October, 1969, i.e., the date on which the learned Magistrate made his order Except for this modification in the orders passed by the two Courts below the petition stands dismissed.


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