ORDER
1. This is a petition filed under S. 482, Criminal P.C., to quash the order dated 13-11-1987 made in Criminal Revision Petition No. 3 of 1983 by the Additional Sessions Judge, Medak at Sangareddy.
2. The 1st petitioner here in is the wife of the 1st respondent while the 2nd petitioner is her daughter through the 1st respondent. In the year 1980 the petitioners filed a maintenance petition against the 1st respondent before the Magistrate at Medak. The learned Magistrate granted Rs. 150/- per months to the wife and Rs. 75/- to the daughter. The petitioner having been aggrieved of the quantum of the maintenance awarded sought for its enhancement by filing a revision under S. 397, Cr.P.C. before the Addl. Sessions Judge, Medak, at Sangareddy. Meanwhile the 1st respondent husband moved this Court under S. 397, Cr.P.C. challenging the very award of maintenance in Criminal Revision Petition No. 36 of 1985. This Court after hearing both sides dismissed the said revision by order dated 22nd April, 1986. The order of this Court runs thus :
“The learned Magistrate on an appraisal of the facts and circumstances, arrived at the conclusion that the wife is entitled to maintenance. It is obviously evident from her evidence and also the prior event of husband going to the extent of denying the marriage itself, that the wife lost confidence in the husband and also apprehends danger to her life. I see no reason to interfere with the order.
Hence criminal revision case dismissed.
Sd/-
xx xx xx
22-4-1986″
After dismissal of the revision filed by the husband by this Court, the revision filed by the present petitioners came up for hearing before the Court below. Relying on a judgment of the Supreme Court in Gojer Brothers v. Ratan Lal, , the Court below held that the order of the Magistrate, which was under challenge before it, has merged in the order of this Court and therefore it could not pass an order contrary to the orders passed by this Court. Accordingly it dismissed the revision filed by the petitioners. Hence this petition under S. 482, Cr.P.C.
3. The simple question in the proceedings under S. 482, Cr.P.C. is whether in the facts and circumstances of this case the 1st respondent-husband could invoke the doctrine of merger so as to dislodge the revision filed by petitioner for enhancement of the maintenance awarded.
4. At the outset, it is to be noticed that S. 397, Cr.P.C., vests a right of revision in the husband as also in the wife against the order granting of refusing maintenance apart from their right to seek enhancement or reduction of the maintenance, if awarded by the trial Court. Further, S. 397, Cr.P.C., provides concurrent jurisdiction in this (High Court) Court as well as in the Sessions Court. It is in view of this provision of concurrent jurisdiction, the petitioners moved the Sessions Judge for enhancement of the maintenance while the husband approached this Court challenging the very award of maintenance. This Court dismissed the revision filed by the husband through the order quoted supra. In view of this order of dismissal the learned Sessions Judge held that the order of the Magistrate got merged in the order of this Court and therefore he could not pass an order contrary to the orders of this Court. Accordingly the revision filed by the petitioners was dismissed. No doubt, since two revisions were filed one before this Court and the other before the Sessions Judge they ought to have been disposed of together by the superior Court after calling for the papers in the case pending before the lower Court. For some or other reason that did not take place in the instant matter.
5. The scope and applicability of the doctrine of merger is laid down in a nut-shell by the Supreme Court in State of Madras v. Madurai Mills, thus :
“The doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fashion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends upon the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.”
The doctrine, thus, is not one of a rigid nature nor its application can be universal. The factors that decide the application of the doctrine are (i) subject-matter of the revisional order, (ii) nature of revisional order and (iii) the scope of statutory provisions conferring the revisional jurisdiction.
6. In so far as the scope of statutory provision is concerned, in the present matter, it is S. 397, Cr.P.C. that conferred revisional jurisdiction in this High Court. Same is the provision in respect of the Sessions Judge. Thus, as regards the scope of the jurisdiction under S. 397, Cr.P.C., there is absolutely no variation in between this High Court and the Sessions Judge. As regards the other two factors, viz., (i) subject-matter of the revisional order and (ii) nature of the revisional order, it is only the order as such, which is extracted supra, that provides the clue to decide whether or not the order of the Magistrate has got merged in the revisional order of this Court. From a reading of the order of this Court in Crl. Revn. Petition No. 36/85 it is patent that the husband respondent had assailed the very grant of maintenance to the petitioners herein. It does not seem to have been contended that the quantum of maintenance awarded was excessive and calls for lowering down, much less there is any reference to the question of quantum of maintenance. Thus, the question regarding the sufficiency or otherwise of the quantum of maintenance awarded has not been adverted to by this Court. What all this Court held was that there was no reason to interfere with the grant of maintenance. Therefore, quantum of maintenance awarded is not an aspect that was decided by this Court for purposes of holding that this Court had refused to interfere with the quantum and thereby the revision filed by the petitioners for enhancement of the maintenance awarded gets dislodged. To the extent of grant of maintenance, no doubt, this Court gave a categorical finding that the wife and daughter (the petitioners herein) were entitled of maintenance. But in so far as quantum of maintenance is concerned, neither it is challenged before this Court nor there is any finding in either way, viz. lowering down or refusing to lower down. The subject matter as also the nature of the revisional order are thus distinct and different from the subject-matter of the revision filed by the petitioners for enhancement of the maintenance awarded. Accordingly, it cannot be said that the quantum of maintenance awarded by the Magistrate was the subject-matter in the revisional order nor the nature of revisional order passed by this Court relating to the quantum of maintenance so as to enable the husband respondent to invoke the doctrine of merger to dislodge the revision filed by the present petitioners before the Sessions Judge. The decision of the Supreme Court in Gojer Brothers’ case on which reliance was placed by the Court below is one where it is laid down that in cases where the decree of the trial Court was carried in appeal, the decree to be executed is that of the appellate Court and not that of the trial Court since the decree of the trial Court is merged in that of the appellate Court. There is absolutely no dispute with this proposition of law. But that principle has no relevancy to the case on hand.
7. It is apposite to notice here that in U. J. S. Chopra v. State of Bombay, the conviction of the accused when challenged in appeal was affirmed by the High Court. Therefore, he could not file any further revision against his conviction or for reduction of sentence. However, as soon as the State applied for enhancement of sentence by way of a revision, the accused becomes entitled under S. 439(6), Cr.P.C. to again challenge his conviction. The Supreme Court has categorically held that the State cannot contend that the accused cannot challenge the very conviction in the revision filed by the State on the ground that the appeal against his conviction filed earlier was dismissed.
8. Another instance noteworthy is the one in Mirza Muzamadar Hussain v. Dodla Bhaskara Reddy . That was a case where on an earlier occasion the Director of Settlement dismissed a petition filed for condonation of delay in filing a revision against the grant of patta by the Settlement Officer. Later, when the Director sought to exercise his suo motu powers of revision, the objection was that he could not do so since earlier he dismissed the petition for the very condonation of delay in filing the revision, which had the effect of dismissing the revision itself. Considering this question, a Division Bench of this Court held that in the facts and circumstances of that case there was no room either for saying that he has exercised once his powers of revision, nor can it be said that the order of Settlement Officer got merged with the order of the Director of Settlements and therefore, there is no order of Settlement Officer which is available for being revised on the second occasion.
9. The decision of the Supreme Court in Shanker Ramchandra v. Krishnaji, is one where the order of the appellate Court in a Rent Control matter was unsuccessfully carried in revision before the High Court. Again when the order of the appellate Court was sought to be challenged under Art. 226 or 227 of the Constitution, the Supreme Court held that it was not permissible since there was no order of the appellate Court as such and that was merged in the order of the High Court in the revision.
10. In this background of the decisions and the specific finding recorded supra since that sufficiency or otherwise of the quantum of maintenance awarded by the Magistrate was neither the subject-matter in the revisional order of this High Court earlier nor the nature of revisional order passed relates to the quantum of maintenance, it cannot be said that the order of the Magistrate to the extent it relates to the sufficiency or otherwise of the quantum of maintenance has got merged in the revisional order. Accordingly the order of the Sessions Judge dated 13-11-1987 in Crl. Revn. No. 3 of 1985 is quashed with a direction to decide the revision afresh in the light of the above finding. The Criminal Petition is allowed.
11. Petition allowed.