Jammu & Kashmir High Court
Kousal Kumar Sharma vs Miss Prerna Sharma on 28 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 65/2008 & connected MPs
Date of decision: 28.10.2017
Koushal Kumar Sharma Vs. Miss Prerna Sharma
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. O.P. Thakur, Advocate.
For the Respondents(s) : Ms. Mandeep Reen, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the medium of present petition, petitioner seeks quashing of judgment and order dated 19-8-2002 passed by the learned Additional Sessions Judge, Jammu in file No.6/Revision titled Koushal Kumar Sharma Vs. Ms. Prerna Sharma whereby the revision petition filed by the petitioner against the judgment and order dated 25-4-2000 passed by the learned Chief Judicial Magistrate, Jammu has been dismissed.
2. It is stated in the petition that a petition under Section 488 Cr.P.C. for grant of maintenance was filed by the respondent and her mother Reeta Sharma against the petitioner in the court of Sub Judge, Judicial Magistrate 1st Class, and Jammu. It was alleged that Reeta Sharma was the legally wedded wife of the petitioner and the respondent was their daughter. The aforesaid claim was totally denied by the petitioner. That the learned Sub Judge, Judicial Magistrate lst Class, Jammu vide judgment and order dated 7-9-1996 held that Reeta Sharma was not legally wedded wife of the petitioner. The learned Magistrate accordingly 561-A Cr.P.C. No.65/2008 Page 1 of 12 2 dismissed the application for grant of maintenance so far as Reeta Sharma was concerned, but granted an amount of Rs. 400/- per month in favour of the respondent. The petitioner filed a revision petition being File No. 12/Revision in the court of learned Sessions Judge Jammu, so far as the grant of maintenance of Rs. 400/- per month in favour of the respondent was concerned. Smt Reeta Sharma and the respondent also filed Revision petition being File No. 18/Revision against the judgment and order passed by the learned Sub Judge, Judicial Magistrate lst Class Jammu. The respondents prayed for the enhancement of the maintenance whereas her mother Reeta Sharma prayed for setting aside order whereby her claim was dismissed. Both the Revision petitions were disposed off by the learned Sessions Judge, Jammu by a common order dated 10.01.1997. The learned Sessions Judge came to the conclusion that Reeta Sharma was not legally wedded wife of the petitioner, as such the order passed by the Sub Judge Judicial Magistrate Ist. Class Jammu was up held to that extent. So far as the grant of maintenance in favor of the respondent was concerned the learned Sessions Judge held that the same was not sustainable. It was further held that the Magistrate was not right in declaring respondent to be the illegitimate child of the petitioner without recording the finding regarding the paternity of the child. It was further held by the learned Sessions Judge that whether the respondent was the illegitimate child of the petitioner, it was not proper to accept the said question on merely statement of her mother without corroboration. Accordingly the learned Sessions Judge made a reference to the High Court with the recommendation to set aside the order passed by the learned Magistrate Sub Judge, Jammu dated 07.09.1996 whereby the respondent was granted Rs.400/- as maintenance per month. The High Court vide judgment and order dated 11.03.1997 accepted the reference 561-A Cr.P.C. No.65/2008 Page 2 of 12 3 and consequently set aside the order dated 07.09.1996 passed by the learned Sub Judge, Jammu.
3. It is further stated in the petition that the respondent and her mother filed an application on 05.10.1996 seeking a direction for recovery of Rs.8,800/- as maintenance from the salary of the petitioner. That subsequent to the filing of the application, the order granting maintenance was set aside by this Court in the reference. That another application was filed by the mother of the respondent for summoning the witnesses in order to prove the paternity of the respondent. The said application was submitted under Section 540 Cr.PC. She cited as many as 7 witnesses. The said application was allowed vide judgment and order dated 24.11.1997 and the mother of the respondent was directed to deposit diet expenses of the witnesses. Against the aforesaid order dated 24.11.1997, petitioner filed a petition under Section 561-A Cr.PC No. 10/98 in this Court. However, the said petition was also disposed off vide judgment and order dated 24.08.1998.
4. It is also stated in the petition that the respondent did not deposit the diet expenses of the witnesses cited by her in order to determine her paternity. Thereafter she made a statement before the learned Chief Judicial Magistrate, Jammu not to lead any evidence. The learned Chief Judicial Magistrate, Jammu vide judgment and order dated 25.04.2000 held that the respondent was the legitimate child of the petitioner and ordered the grant of maintenance of Rs. 1700/- per month with effect from the date of application i.e. 22.11.1994.
5. That aggrieved of the said order the petitioner filed a revision petition in the Court of learned sessions Judge Jammu, which was transferred to the learned Additional Sessions Judge, Jammu. The learned Additional Sessions Judge, Jammu vide judgment and order dated 19.08.2002 has dismissed the revision petition and ordered that the petitioner should pay 561-A Cr.P.C. No.65/2008 Page 3 of 12 4 the entire maintenance amount within three months failing which his moveable property should be attached and in case there was no movable property, he should be put in civil prison till he made the entire amount of maintenance. That the petitioner filed a criminal revision petition bearing No. 75/2002 in this Court challenging the aforesaid orders passed by the learned Additional Sessions Judge, Jammu and Chief Judicial Magistrate, Jammu. This Court in the said criminal revision petition issued notice and stayed the impugned order.
6. That during the pendency of the said criminal revision petition, an application was filed by the respondent with the prayer that she should be allowed to produce evidence on the issue of paternity. Objections were filed by the petitioner to the said petition. That when the aforesaid criminal revision petition was pending, the Criminal Procedure Code was amended in 2006. By virtue of the said amendment Section 435 and 438 have been substituted. By virtue of the aforesaid amendment it has been provided that where application for revision was made before the Sessions Judge, no further proceedings by way of revision at the instance of said persons should be entertained by the High Court or any other court. That a number of criminal revision petitions were referred to the larger bench on the point as to whether second revision petition was maintainable. Another related question was raised as to whether in case second revision petition was maintainable, whether the same could be continued after the amendment made in the year 2006.
7. It is stated that Hon'ble Division Bench vide judgment and order dated 03.04.2008 in a batch of revision petitions held that the amendment made under Section 435 of the Criminal Procedure Code would operate retrospectively affecting pending second revision petition also. However, Division Bench has further held as under:
561-A Cr.P.C. No.65/2008 Page 4 of 12 5"Further, it may be noted, the amended provisions of Section (2) would not affect the inherent powers of High Court under Section 561-A of the Code. Even if a second revision is barred under Section 435 (3), the orders can be questioned under Section 561-A."
8. In view of the aforesaid facts and circumstances, the judgment passed by the Hon'ble Division Bench, the petitioner has challenged the orders passed by the learned Additional Sessions Judge, Jammu and Chief Judicial Magistrate, Jammu, on the following grounds:-
A. That the judgment and order impugned is contrary to the facts of the case and law on the point. The same is liable to be quashed. B. That the judgment and order passed by the learned Chief Judicial Magistrate amounts to setting aside the order passed by the learned Sessions Judge dated 10.01.1997 which was confirmed in a reference by this Hon'ble Court vide order dated 11.03.1997. The learned sessions Judge in the earlier round of litigation has held as under:-
".......In order to draw an inference about the paternity of an illegitimate child that it must be shown that at or about the time the child was conceived a particular person was frequenting the society of the woman and vice versa and thereby had access to her. The question is whether the non-applicant is the father of the illegitimate child itself is not proper to accept without corroboration on mere statement on oath of the mother. Where the paternity of the child is denied by the opposite party, the Magistrate will have to decide that question. If the basis for claiming maintenance is the paternity of the child (whether legitimate or illegitimate) it is the duty of the court to record finding on that issue before passing an order for maintenance..."
After propounding the legal proposition of law on the subject, he further held in the facts and circumstances of the case as under:-
"......The learned Magistrate, therefore, having not discharged his onerous duty in delivering specific and categorical finding with regard to the paternity of the child and there being not an iota of evidence brought on record at or about the time the child was conceived the non-applicant was frequenting, or had the chance of frequenting the society of the woman and vice versa......"
Thus, on the basis of evidence available on record the learned Sessions Judge in the first round of litigation recorded a clear finding that there was no evidence holding that the petitioner was frequenting the society of the mother of the respondent. After remanding the case by this Hon'ble Court to the learned Chief Judicial Magistrate, Jammu no further/additional evidence was lead. The learned Chief Judicial Magistrate passed the order granting the maintenance on the basis of same evidence, which was held insufficient for holding the petitioner 561-A Cr.P.C. No.65/2008 Page 5 of 12 6 responsible for maintenance. The learned Chief Judicial Magistrate, therefore, has acted beyond the jurisdiction as such the judgment and order passed by him is unsustainable and deserves to be quashed. This aspect of the case has also not been appreciated by the learned Additional Sessions Judge, Jammu in his order dated 25.04.2000 passed in a revision petition. Both the orders, therefore, deserves to be quashed. C. That it is settled principle of law that where an order has been set aside by higher court on the ground that the evidence was not sufficient to pass such an order, the trial court after remanding cannot pass an order on the basis of same evidence. The said course amounts to set aside the order passed by the higher court. The judgment and order passed by the learned Chief Judicial Magistrate and Additional Sessions Judge Jammu, therefore, deserves to be quashed.
D. That as submitted herein above after remanding the case, the mother of the respondent cited as many as 7 witnesses in order to prove the paternity of the respondent but none was examined. As a matter of fact the counsel for the respondent made a statement that no further evidence would be lead. The relevant part of the finding in that behalf recorded by the learned Chief Judicial Magistrate, Jammu is reproduced below:-
"The record of file was accepted by this court and proceeded with the trial. The petitioner for the moment did not press the application for directing the respondent to DNA test. Hence the application was dismissed as not pressed. Interceding the parties through their counsel made a statement at bar that they are not interested to lead any more evidence in this case. Accordingly, the file was kept for arguments."
9. Petitioner has prayed that the judgment and order dated 19.08.2002 passed by the learned Additional Sessions Judge, Jammu in revision petition filed by the petitioner may kindly be quashed and consequently the judgment and order dated 25.04.2000 passed by the learned Chief Judicial Magistrate, Jammu in file No. 25/Misc, be also quashed.
10. Objections stand filed on behalf of respondent stating therein that the petitioner has filed the revision petition against the order of CJM, Jammu granting maintenance to the respondent under section 488 Cr.P.C. which revision was dismissed by the Addl. Session Judge, Jammu and second revision filed by the petitioner was dismissed by the Hon'ble High Court as not maintainable. That the judgment is concluded by finding the fact 561-A Cr.P.C. No.65/2008 Page 6 of 12 7 that there is no jurisdictional error and the jurisdiction under Section 561- A Cr. PC cannot be invoked. That the respondent along with her mother filed petition u/s 488 Cr.PC for grant of maintenance. The marriage of the mother of the respondent took place when there was a divorce decree between the petitioner and his earlier wife against which appeal was pending in this Hon'ble Court but after solemnizing marriage with the mother of the respondent, the petitioner entered into a compromise with his earlier wife in the Hon'ble High Court with the result the appeal was accepted and decree of divorce was set aside. The petitioner has taken advantage that the marriage solemnized by the petitioner with the mother of the respondent was solemnized during the subsistence of his earlier marriage, as such; the marriage with the mother of the respondent was void. The mother of the respondent had become pregnant in the meanwhile during the period she remained as wedded wife of the petitioner and out of which the respondent was born. This has given a cause to the petitioner to deny the claim of the respondent and her mother.
11. It is further stated that the claim of the respondent's mother was dismissed but respondent was granted maintenance of Rs.400/- per month by the Magistrate vide order dated 07.09.1996. That the petitioner filed a revision against the said order granting maintenance of Rs. 400/- per month to the respondent. That the mother of the respondent also filed revision petition before the Session Judge, Jammu. The learned Sessions Judge, Jammu dismissed the revision filed by the mother of the respondent and accepted the revision petition filed by the petitioner on ground that the marriage of the mother of the respondent with the petitioner is void and respondent is an illegitimate child and without recording paternity of the respondent, maintenance could not be granted and remanded the case back to the trial court. As the power to accept was 561-A Cr.P.C. No.65/2008 Page 7 of 12 8 available with the Hon'ble High Court, so the learned Session Judge, Jammu made the reference to Hon'ble High Court. But the learned Session Judge, Jammu was wrong in holding that the respondent was an illegitimate child of the petitioner in ignorance of provisions of Section 18 of Hindu Marriage Act which clearly demonstrate that any marriage solemnized which is void under Act does not make the offspring of the said void marriage are illegitimate. The judgment of the Learned Session Judge, Jammu was passed in ignorance of the law. The Hon'ble High Court also accepted the reference without considering the provision of Section 18 of Hindu Marriage Act in the absence of the respondent or her counsel.
12. That the observation of the Hon'ble Division Bench that the petitioner can challenge the order impugned under Section 561-A Cr.P C does not give a liberty to the petitioner to get out the parameters prescribed u/s 561-A Cr.PC. That the order is concluded by finding of facts that the respondent is born out of the void marriage of the petitioner with the mother of the respondent which cannot be questioned in the present proceedings. That both the courts have remanded the case to determine the paternity of the respondent as the finding was set aside as the trial court had not returned a finding with respect to the paternity of the respondent. The courts below have taken into consideration this fact and held that the respondent was born out of the wedlock of the petitioner with the mother of the respondent which was void. Even u/s 488 Cr.P.C an illegitimate is entitled to maintenance. It is wrong to say that the courts below have not given positive finding regarding the paternity of the respondent when it has returned a positive finding that the respondent was born out of wedlock of the petitioner with the mother of the respondent which was void. That there was sufficient material to prove that the respondent was born out of the marriage of the petitioner with the mother of the respondent which was 561-A Cr.P.C. No.65/2008 Page 8 of 12 9 held to be a void marriage and the presumption of paternity is available when a child is born within 280 days of the marriage u/s 112 of Evidence Act. That as the petitioner was not ready for DNA test and the matter was being prolonged so the application was not pressed but even respondent is ready and call upon the petitioner to get a DNA test conducted with the blood sample of the respondent as the court cannot force the petitioner to submit to DNA test and on his refusal application was not pressed and court can draw adverse inference. That the courts below have granted the maintenance at a rate of Rs. 1700/- from the date of application which was amended because of the amendment made in the Act increasing maintenance from Rs. 500/- to Rs 2000/- per month. That the Cr.P.C is a procedural law and amendment is always retrospective. That the petitioner is a Govt. employee and amount can be recovered by attachment of his salary. The respondent prayed that the petition be dismissed with costs.
13. Heard learned counsel for both the sides and considered the law on the subject.
14. From the perusal of various orders annexed with this petition, it is evident that this case has chequered history; this shows how the maintenance to respondent has been prolonged from so many years on the ground that mother of respondent could not prove that she was legally wedded wife of petitioner. Litigation started on 22.11.1994 when respondent and her mother filed a petition u/s 488 Cr.P.C. before Sub Judge, Jammu; this petition was contested by petitioner and finally on 7.9.996 wife was declined for grant of maintenance on account of subsistence of first marriage of her husband, but respondent daughter was granted maintenance of 400/- pm being illegitimate child from the date of application; both parties filed revision before Session Judge Jammu who on 10.1.1999 accepted the revision of husband against granting of maintenance to illegitimate child (respondent) on the ground that 561-A Cr.P.C. No.65/2008 Page 9 of 12 10 magistrate has not decided paternity of child; accordingly reference was made to High Court with such recommendation. High Court on 11.3.1997 accepted the reference and set aside the order of magistrate and remanded the case back to trial court. An application was filed by respondent under section 540 Cr.P.C. for calling witnesses for proving paternity. This application was allowed on 24.11.1997. Petitioner again filed a petition under section 561-A Cr.P.C. against said order but that petition was dismissed on 24.8.1998 and it was directed to court to proceed with the matter expeditiously; there an application was filed by respondent for directing the petitioner herein to give blood for DNA test for paternity.
15. Matter was then taken by CJM, Jammu on the reference made by said court; this application thereafter was not pressed. The matter was kept for hearing on the agreement of counsel for parties; Court of CJM relying on the birth certificate issued by JMC under section 12/17 of Registration of Birth and Death Act, wherein father's name has been written as Koushal Kumar and relying on oral evidence produced by claimant namely Rita Sharma alleged wife -the mother of respondent herein, Sudershan Sharma and one Savitri Devi and that of petitioner himself, came to conclusion that marriage between petitioner -herein and mother of respondent has been found proved; although it was second marriage; court also held that respondent herein was born out from subsistence of that marriage; so she can be termed as illegitimate child; and as per amended 488 Cr.P.C. illegitimate child is also entitled for maintenance. JMIC based his finding on appreciation of evidence. Accordingly maintenance of Rs.1,700/- pm was awarded.
16. The matter was taken before Additional Sessions Judge, Jammu in revision, who on 19.8.2002 dismissed the same and upheld order of JMIC, on the ground that there was no perversity in the order of JMIC (CJM) Jammu.
561-A Cr.P.C. No.65/2008 Page 10 of 12 1117. Therefore, there are concurrent findings of two courts below on the basis of appreciation of evidence. Petitioner has filed this petition for quashment of orders of two courts below under the provision of 561-A Cr.P.C.
18. The law with regard to quashment of order or any criminal proceeding or FIR or complaint, is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an exfacie all merited prosecution is throttled at the threshold without allowing the material in support of it.
19. This court while exercising the power under section 561-A Cr.P.C. does not function as court of original jurisdiction, appeal or revision. Inherent jurisdiction has to be exercised disparity, careful and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether on appreciation of evidence, the finding recorded by trial court or that of revisional court is correct or not. Only in exceptional circumstances when court comes to conclusion that there is inherent incorrectness or perversity in order, this court can interfere under provision of 561-A Cr.P.C.
20. In present case, there is finding of two courts below that respondent was born out when there was matrimonial relationship between petitioner and mother of respondent. Both courts below have arrived this finding on appreciation of evidence. Further as per provision of 488 Cr.P.C. the illegitimate child is also entitled for maintenance from his/her father.
21. In 1995 (2) CRIMES 306 in case titled Ganesh Naryan Hedge Vs. Bangarappa, it is held as under by the Apex Court:-
561-A Cr.P.C. No.65/2008 Page 11 of 12 12"10. Section 399 of the Code of Criminal Procedure confers upon the Sessions Judge the power to revise any order made by the Magistrate but sub-section (3) thereof declares at the same time that "(W)here any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
11. Section 482 of the Code saves the inherent powers of the High Court. It reads:
"482. Saving of inherent powers of High Court
- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
12. While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter."
22. So in terms of above law also while acting under Section 561-A Cr.P.C.
and that too after the learned Sessions Judge had declined to interfere in the matter, this court should not enter into the arena of appreciation of evidence.
23. In view of above, this petition is dismissed.
(Sanjay Kumar Gupta) Judge Jammu, 28.10.2017 Pawan 561-A Cr.P.C. No.65/2008 Page 12 of 12