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Leela And Anr. vs State Of Madhya Pradesh on 19 January, 1995

Madhya Pradesh High Court
Leela And Anr. vs State Of Madhya Pradesh on 19 January, 1995
Equivalent citations: II (1995) DMC 557
Author: T Shankar
Bench: T Shankar


JUDGMENT

Tej Shankar, J.

1. This petition under Section 482 of the Code of Criminal Procedure has been preferred by Smt. Leela and Manibhushan, under the guardianship of Smt. Leela, against the order dated 16.9.1991 passed in Criminal Revision No. 185/89.

2. The facts giving rise to this petition are that a petition under Section 125 Cr.P.C. was moved by the present petitioners before the Judicial Magistrate First Class, Gwalior for grant of maintenance at the rate of Rs. 2500/- per month. They alleged that the petitioner No. 1 was married to Dr. Brijbhushan according to Hindu rites on 8.3.1981. Out of the wedlock a son, applicant No. 2 Manibhushan was born on 31.7.1983. Since then he was living with petitioner No. 1. The opposite parties used to drink heavily. He was of immoral character and used to demand dowry. Thus, the petitioner was mentally and physically tortured. Dr. Vijay Bhushan, her brother had brought her in Diwali in 1982, as on the previous night, the opposite party had beaten her after taking drinks, when she was pregnant. After two months of the birth of the child, she went to Surya Prasad, her father at Gwalior. Since then the opposite party was neither taking her and the child nor maintaining them. Her father was feeling difficulty in maintaining her and her child. The opposite party is a Medical Practitioner under the Central Government and was earning Rs. 4000/- besides other allowance but he was not maintaining the petitioners. She also required money for the education of the child. The opposite party has also kept ornaments, clothes etc. of the petitioner.

3. The petition was contested on various grounds. It was alleged by the respondent that he had filed a petition for divorce under Hindu Marriage Act in the Court of Additional District Judge, Delhi, which was decided on contest. It was pleaded and held therein that there had been no cohabitation between the parties. No appeal was filed against that order and the findings that there was no cohabitation had become final. The allegation that petitioner No. 2 was borne out of the wedlock is false and frivolous. Petitioner No. 1 was leading adulterous life and petitioner No. 2 was borne out of adultery. The other allegations made in the petition were also denied. The allegations that the petitioner No. 1 was beaten and demand of dowry was made and that there was marpit done by him in drunken condition have been specifically denied. It was further pleaded that the petitioner No. 1 was working as a teacher in the school of her father and was earning her livelihood. She was post-graduate and was well qualified. Non-applicant has alleged that after paying house-rent, G.P.F., General Insurance etc, which comes to Rs. 3630/- during February, 1985, he got Rs. 1025/- only. He denied his liability to maintain the petitioner. He had one pair of gold bangle, a neckless, which he was ready to deliver to the petitioner. He had also utensils and other articles given at the time of marriage and is ready to give it to the petitioners.

4. Learned lower Court after taking the evidence adduced by the parties and hearing the parties allowed the petition in part. He awarded the maintenance of Rs. 1000/- per month from 29.12.87 upto the date of order. The amount was directed to be paid in 4 instalments within a period of one year. It further held that the petitioner No. 2 was not entitled to maintenance vide order dated 5.6.89. A revision petition was preferred against that order by Dr. Brijbhushan which was allowed on 16.9.1991 and the order granting maintenance was set aside. Feeling aggrieved, the present petition has been preferred.

5. Initially, learned Counsel for the petitioner did not appear and the learned Counsel for the respondent was alone heard. Lateron on the application of the learned Counsel for the petitioner for being heard, he too was heard. Thus both the parties have been heard at length.

6. Preliminary objection was raised by the learned Counsel for the respondent that the petition under Section 482 Cr.P.C. is not maintainable. He contended that there was a finding of fact by the learned Magistrate that the child was illegitimate child. No revision was preferred against that order and as such that order became final. It cannot now be challenged in this petition. His next contention is mat in this petition, finding of fact cannot be gone into. Learned Counsel for the petitioner argued at length and urged that in exercise of inherent powers conferred under Section 482 Cr.P.C. the Court can pass any order to prevent the abuse of the process of Court or which is necessary in order to secure the ends of justice. His contention is that, in the present case, the learned Magistrate did not take into consideration the fact that there was a specific allegation of the petitioner that child was born during the continuance of the marriage and thereafter she was turn out when she was pregnant. The learned Magistrate also did not take into consideration the provisions of Section 112 of the Evidence Act which raises a presumption about the legitimacy of the child. Thus, the order passed is perverse and can be interfered with in exercise of the powers conferred under Section 482 Cr.P.C. Similarly learned Counsel attacked the order passed by the Revisionl Court and argued that petitioner No. 2 was not impleaded as a party in the revision and as such, he had no opportunity to contest the findings of the learned Magistrate with respect to his illegitimacy. He urged that even if no revision was filed by him in that case too this Court under its inherent powers can consider this aspect and come to a conclusion that the findings arrived at by the learned Magistrate are perverse. In reply to this contention, learned Counsel for the non-applicant contended that the findings of fact cannot be interfered with under inherent powers. He urged that inherent powers cannot be exercised when there is a specific provision in the Code and the petitioners can challenge the findings of the Magistrate by filinga revision and if no revision is filed, the findings have become final.

From the argument advanced by the learned Counsel for the parties, the most important question that arises for consideration is with respect to the scope of the provisions of Section 482 Cr.P.C. because admittedly in the present case, there is a finding of fact of the learned Magistrate that the child was illegitimate child and that finding was not challenged by the present petitioners by filing a revision. The provisions of Sections 482 Cr.P.C. are very clear and they confer wide powers to this Court to pass such an order as is necessary to give effect to any order under the Code or to prevent the abuse of the process of the Court or otherwise to secure ends of justice. Question about the scope of Section 482 Cr.P.C. came up for consideration before various High Courts as well as the Apex Court. Certain authorities in this regard have been relied upon by the learned Counsel for the parties.

7. Learned Counsel for the applicants placed reliance upon Madhu Limaye v. State of Maharashtra, AIR 1978 S.C. 47, Raj Kapoor v. State (Delhi Admn.), AIR 1980 S.C. 258, and Dukhtar Jahan v. Mohd. Farooq, AIR 1987 S.C. 1047. The principle of law that provisions of Section 482 cannot be invoked when there are statutory remedies provided under the Code of Criminal Procedure itself or available, is rather settled. In Madhu Limaye’s case (supra), the Apex Court laid down the principles which relate to the exercise of the inherent powers of the High Court as follows :

“(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2)    That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
 

(3)    That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
 

The above principles were re-affirmed in a later decision reported in case of Rajkapoor (supra). Learned Counsel for the petitioner laid much stress upon this authority. If we carefully peruse this authority, it transpires that nothing new has been laid down in this case but the principles laid down in Madhu Limaye's case (supra) have been reiterated. No doubt it has been held that :

“Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. There is no total ban on the exercise of inherent power where abuse of the process of the Court or other extra-ordinary situation excites the Court’s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear the interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the Court in the face. In between is a tertium quid, as for example, where it is more than a purely interlocutory order and less than a final disposal. In such case the inherent power can be exercised.”

Thus, it is settled that inherent powers can only be invoked sparingly. This authority too, to my mind does not help the learned Counsel for the appellants. This point has also been referred to in Raj Kapoor’s case (supra). If there is an alternative and proper Forum available, the High Court should not generally exercise its powers under Section 482 Cr.P.C. Of course, the inherent powers of the High Court are unlimited and they could be invoked to prevent the abuse of the process of the Court or if it is necessary to secure the ends of justice. In the present case, we have to find out as how far the inherent powers of this Court can be invoked.

8. I have already said above that there is a finding of fact by the learned Magistrate, which has been confirmed by the Revisional Court. The learned Counsel for the State, as said above, the learned Magistrate did not take into consideration the provisions of Section 112 of the Evidence Act, which provided for a presumption of legitimacy. It has further been contended that the learned Magistrate ignored the specific averment made in the petition that the child was born out of the wedlock. Learned Counsel also contended that the learned Magistrate did not care to go into the judgment passed by the Delhi High Court relied upon by it. It has therefore been contended that it all amounts to abuse of the process of Court.

9. To my mind, it was open for the petitioner to have challenged the findings, by filing a revision petition according to law, but the petitioner did not chose to avails of that opportunity. As specific remedy was available to the petitioner under the Code of Criminal Procedure of filing a revision and of challenging those findings, I am of the view that it is not open for the petition to invoke inherent jurisdiction of this Court under Section 482. Inherent power cannot be a sustitute for appeal. Learned Counsel also urged that it was for the guardian of the minor child to have challenged the findings of illegitimacy and she did not choose to file a revision petition, it affected the rights of the minor, as will her ownership . It is significant to note that the mother of the child was a party in the revision filed by the non-applicant and she could very well have challenged that finding because it also affected her own interest. In this view of the matter, the inherent powers of this Court cannot be invoked as an efficacious remedy was available to the petitioners. Inherent powers can be invoked only sparingly to prevent the abuse of the process of Court. In the present case I do not find that there is any abuse of the process of the Court. There is a specific finding which is based upon evidence and which has now become final, cannot be challenged in this petition under Section 482 Cr.P.C.

10. Before parting with this case, I may also mention that the learned Counsel for the non-applicant placed reliance upon Dukhtar Jahan’s case (supra). This case related to the legitimacy of the child. A careful perusal of this authority also shows that it does not help the learned Counsel. This Court in exercise of inherent jurisdiction cannot re-assess the evidence and come to a different conclusion, of course if there is an abuse of the process of the Court, the Court can exercise inherent powers. As seen above, there is no abuse of the process of the Court, rather the applicants want the Court to reassess the evidence which is not permissible.

11. The petition therefore deserves rejection and is accordingly dismissed.

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