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Mohd. Shaffi Vs. Amtul Nisa Begum - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 48 of 1968
Judge
Reported in5(1969)DLT503
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 561A;
AppellantMohd. Shaffi
RespondentAmtul Nisa Begum
Advocates: C.M. Kohli and; Y.K. Sabharwal, Advs
Cases Referred(S. Amrik Singh Lyalpuri v. Lady Dr. P. K. Kapil). As
Excerpt:
.....nto to be exercised --suo motu exercise of revisional powers by high court--when nto proper--criminal procedure code, section 439.; it is well established that inherent powers of this court are to be exercised very sparingly and in exceptional cases only. as a general rule, the powers are nto to be exercised in cases where the aggrieved party has another remedy open to him but has nto availed of that remedy. this general rule may be departed from only in very rare cases where the exercise of inherent powers is essential for remedying a grave injustice. where the petitioner had a remedy of going up in revision to the court of session against the order of the sub-divisional magistrate, and he did nto avail of that remedy. held, that high court should nto exercise its inherent powers..........1966.(2) the respondent had, on the 1st march 1966, filed an application, under section 488, criminal procedure code, against the petitioner. the allegations, in the application, were that the respondent was married with the petitioner on the 9th september, 1962, according to muslim rites, that the petitioner and the respondent had lived as husband and wife for the period of eight months, that the petitioner had subjected the respondent to cruel treatment and had ultimately turned her out of the house after giving beating. it was, further, alleged that the petitioner, who had sufficient means, had neglected to maintain the respondent. the respondent prayed that the petitioner may be ordered to pay rs. 130.00 per mensem as maintenance allowance to the respondent.(3) after recording.....
Judgment:

Om Parkash, J.

(1) This petition, under section 561A, Criminal Procedure Code, is directed against an order of the Sub-Divisional Magistrate dated the 30th November, 1966.

(2) The respondent had, on the 1st March 1966, filed an application, under section 488, Criminal Procedure Code, against the petitioner. The allegations, in the application, were that the respondent was married with the petitioner on the 9th September, 1962, according to Muslim rites, that the petitioner and the respondent had lived as husband and wife for the period of eight months, that the petitioner had subjected the respondent to cruel treatment and had ultimately turned her out of the house after giving beating. It was, further, alleged that the petitioner, who had sufficient means, had neglected to maintain the respondent. The respondent prayed that the petitioner may be ordered to pay Rs. 130.00 per mensem as maintenance allowance to the respondent.

(3) After recording preliminary evidence, the Sub-Divisional Magistrate summoned the petitioner for the 16th May 1966. It appears from the order dated the 16th May 1966 that the order of the previous date was nto complied with. The Sub-Divisional Magistrate ordered compliance of his previous order. The case was adjourned to the 28th June 1966. Thereafter, notice was ordered to be issued to the petitioner on several dates but the petitioner could nto be served. Even the notices were nto received back. The petitioner was ultimately proceeded against ex-parte on the 2nd September, 1966. After recording ex-parte evidence, the Sub-Divisional Magistrate passed an ex-parte order on the 30th November, 1966, granting the respondent maintenance allowance at the rate of Rs. 60.00 per mensem from the date of the order.

(4) On the 24th April, 1967, the respondent filed an application for realisation of the arrears of Rs. 240.00 which had become due from the petitioner. The Sub-Divisional Magistrate ordered the issue of a warrant of attachment. The warrant could nto be executed. The Sub-Divisional Magistrate then ordered the issue of a warrant of arrest on the 26th December, 1967. That warrant could also nto be executed, but the petitioner appeared in Court on the 19th February, 1968.

(5) On the 19th March, 1968, the petitioner filed an application before the Sub-Divisional Magistrate for the review of the order dated the 30th November 1966. The application purported to be under section 561A, Criminal Procedure Code. The petitioner had, in the application, admitted this marriage with the respondent but had denied that he had maltreated the respondent. The plea of the petitioner was that the respondent had left his house in a surreptitious manner on the night of the 9th January 1963 and that the petitioner had in that connection lodged the report with the police. It was, further pleaded that the petitioner was never served with the notice of the application of the respondent under section 488, Criminal Procedure Code, and that he had come to know about the ex-parte order two or three days before the filing of the application for the review of the order. The Sub-Division al Magistrate rejected the application for review on the 25th Marcel 968.

(6) The petitioner filed the present petition under section 561A, Criminal Procedure Code, on the 1st April, 1968. As already stated, the petition is directed against the order dated the 30th November, 1966, but in one of the grounds, legality and correctness of the order rejecting the application for review has also been attacked.

(7) The learned counsel for the respondent raised a preliminary objection that the petition under section 561A, Criminal Procedure Code, was nto maintainable. The argument of the learned counsel was two-fold. Firstly, it was contended, that the limitation for making an application for setting aside the ex-parte order passed under section 488, Criminal Procedure Code, against the petitioner was three months, which period is to be counted from the date of the order and nto from the knowledge of the petitioner, and that as the present petition was filed a year and a quarter after the passing of the ex-parte order, this Court should nto exercise the inherent powers under section 561 A, Criminal Procedure Code, in favor of the petitioner because it will result in granting a relief to the petitioner whose statutory remedy had become barred by time. Reliance was placed on Hyder Khan v. Safoora Begum, (1) and other authorities. Secondly, it was contended that a remedy by way of revision to the Court of Session against the order of the Sub-Divisional Magistrate was available to the petitioner, and as the petitioner had failed to avail of that remedy, he was nto entitled to invoke the inherent powers of this Court.

(8) The second contention urged on behalf of the respondent appears to be well-founded. It is, thereforee, nto necessary to record a finding on the first contention.

(9) It is well-settled that inherent powers of this Court are to be exercised very sparingly and in exceptional cases only. As a general rule, the powers are nto to be exercised in cases where the aggrieved party has another remedy open to him, but has nto availed of that remedy. This general rule may be departed from only in very rare cases where the exercise of inherent powers is essential for remedying a grave injustice. Admittedly, the petitioner had a remedy of going up in revision to the Court of Session against the order of the Sub-Divisional Magistrate. The petitioner did nto avail of that remedy. This Court should nto exercise its inherent powers in favor of the petitioner.

(10) It was contended, on behalf of the petitioner, that grave miscarriage of justice has taken place in the present case as an ex-parte order, burdening the petitioner, with the liability of payment of Rs. 60.00 permensem, has been passed without affording an opportunity to the petitioner to be heard. The argument was that the petitioner was never served with any notice and in fact no notice was issued and that he had no knowledge of the proceedings under section 488, Criminal Procedure Code. Reference was made to that fact that there were no notices on record. Now, the record discloses that the Sub-Divisional Magistrate had ordered the issue of notice on various dates. Process fee was also filed by the respondent at least for three dates. It is true that the notices are nto on the record. The Sub-Divisional Magistrate was asked to trace the notices in his office. He reported that notices were nto traceable. The absence of notices makes it doubtful whether notices were issued or not. But it cannto be, in face of the orders of the Sub-Divisional Magistrate, positively held that notices were nto issued. The injustice, if any, in the circumstances of the case, is of a doubtful character. The inherent powers of the Court cannto be exercised where the injustice alleged is of a doubtful character and nto of a grave nature vide Ram Narain v. Mool Chand and others an authority cited by the learned counsel for the petitioner. In that case, the Court had refused to exercise its inherent powers as the petitioner had failed to avail himself of the remedy of appeal against an order of acquittal and the injustice alleged was of a doubtful character.

(11) Faced with the above situation, the learned counsel for the petitioner requested that this Court may suo mota exercise its powers of revision which are independent of the revisional powers of the Court of session and are exercisable without any restriction in regard to limitation. The learned counsel relied up to the decision of the Hon'ble the Chief Justice in Criminal Revision No. 322 of 1967 (S. Amrik Singh Lyalpuri v. Lady Dr. P. K. Kapil). As has been observed by the Hon'ble the Chief Justice in that very criminal revision, the suo mota powers of revision of this Court are to be exercised in rare cases and only when non-interference will cause a grave failure of justice. The present case is nto such a rare case.

(12) For the reasons stated above, the preliminary objections is upheld and the petition under section 561A, Criminal Procedure Code, is dismissed.


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