Chattisgarh High Court
Bahuran vs Smt. Shiv Kanti And Anr. on 26 November, 2002
Equivalent citations: 2003(1)MPHT64(CG)
ORDER Fakhruddin, J.
1. Heard.
2. The applicant has filed this petition against the order dated 25-6-2002 passed by the Addl. Sessions Judge, Janjgir.
3. The respondent No. 1 filed an application under Section 125 of the Cr.PC for grant of maintenance from the petitioner. The learned Trial Court dismissed the application by order dated 4-7-2001. Against the said order, the respondent No. 1 filed a revision before the Revisional Court which is still pending. However, the Revisional Court on 25-6-2002 passed an interim order by which the respondent No. 1 is permitted to produce certain documents in the case. One of the question arose was whether the marriage of the applicant with respondent had taken place before the death of first wife or subsequent thereto. During the pendency of the revision, the respondent filed a death certificate of Durgabai to contend that she had died before her marriage.
4. Learned Counsel for the applicant/husband contended that the Revisional Court was not justified in taking the document on record. This contention is repelled by the learned Counsel appearing for the State.
5. The Revisional Court has the same power as that of Appellate Court. In this regard, Sub-section (1) of Section 399 and Sub-sections (1) and (2) of Section 401 of Cr.PC are relevant and quoted below :--
"399. Sessions Judge's powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.
401. High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence."
6. Section 386(e) of the Criminal Procedure Code is also relevant and quoted below :--
"386. Powers of the Appellate Court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-
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(e) make any amendment or any subsequential or incidental order that may be just and proper."
7. In the instant case, Durgabai admittedly was wife of the applicant. Relationship between husband and wife is such which has to be within the knowledge of husband and death of wife has also to be within the knowledge of the applicant. The death certificate has been filed. Opportunity has been given to him to rebut. The provision of Sections 106, 107 and 108 of the Evidence Act is pertinent and quoted below:--
"106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
107. Burden of proving death of person known to have been alive within thirty years.--When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years.--Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
8. Having heard and considered the facts and circumstances of the case and material on record and in view of the discussion made in foregoing paragraphs, in the opinion of this Court, no case is made out for interference in the impugned order in exercise of the jurisdiction under Section 482 of Cr.PC.
9. The petition fails and is dismissed.