Himachal Pradesh High Court
Rajesh Kumar vs Kamlesh Kumari & Another on 5 October, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. R. No. 247 of 2016.
Decided on: 5.10.2016.
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Rajesh Kumar ....Petitioner.
Versus
Kamlesh Kumari & another ... Respondents.
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of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
rt No.
For the petitioner. : Ms. Shalini Thakur, Advocate vice Mr. Sunny
Modgil, Advocate.
For the respondent. : Mr. Sanjeev Sharma, Advocate.
Ajay Mohan Goel, J (Oral).
By way of this petition, the petitioner has challenged the order passed by the Court of learned Chief Judicial Magistrate, Una in Petition RBT No. 19/15/10 dated 19.9.2015, vide which learned court below dismissed the application filed by the present petitioner under Section 127 of Criminal Procedure Code (in short 'Cr.P.C.').
2. The case put forth by the petitioner is that a petition was filed under Section 125 of the Cr.P.C. by respondents in which learned court below vide order dated 11.11.2009 granted 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:21:45 :::HCHP 2maintenance allowance of Rs. 1200/- per month in favour of respondent No.1, i.e. wife of the present petitioner and maintenance allowance of Rs. 800/- per month in favour of .
respondent No.2, son of the present petitioner. For cancellation of the order so passed under Section 125 of Cr.P.C. petitioner filed an application/petition under Section 127 of Cr.P.C. on the ground that he had become mentally sick and was under
of treatment at PGI, Chandigarh and was unable to pay the maintenance. Learned court below dismissed the petition so filed by the petitioner under Section 127 of Cr.P.C. by holding that no rt case was made out by the petitioner in the petition filed under Section 127 of Cr.P.C. as to what were the changed circumstances which allowed him to pray for cancelling the maintenance order passed in petition filed under Section 125 of Cr.P.C. dated 11.11.2009. Learned court below also took note of the fact that petitioner had also not placed on record order dated 11.11.2009 which was challenged by way of petition filed under Section 127 of Cr.P.C.
3. On these bases, learned court below dismissed the petition so filed and feeling aggrieved by the said order dated 19.9.2015, the petitioner has filed the present criminal revision petition.
::: Downloaded on - 15/04/2017 21:21:45 :::HCHP 34. This revision petition has been filed by the petitioner through his father on the ground that the petitioner is physically handicapped and mentally sick.
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5. I have heard learned counsel for the parties and have also gone through the order dated 19.9.2015 passed by the learned court below.
6. In this revision petition also order dated 11.11.2009 of which was passed by learned court below on the application filed under Section 125 of Cr.P.C. has not been placed on record. Copy of petition which was filed under Section 127 of Cr.P..C. before rt learned court below has also not been appended with the present revision petition by the petitioner and no cogent explanation was given by learned counsel for the petitioner as to why neither the order passed under Section 125 of Cr.P.C. by learned court below was placed on record in the present revision and nor the petition filed under Section 127 of Cr.P.C was placed on record in the present revision petition for this Court's perusal.
7. Be that as it may, in my considered view a perusal of order dated 19.9.2015 passed by learned court below which is under challenge in the present revision petition demonstrates that there is no perversity in the same.
8. During the course of arguments learned counsel for the petitioner could not point out as to what was the change in the circumstance of respondents No.1 and 2 who were receiving ::: Downloaded on - 15/04/2017 21:21:45 :::HCHP 4 monthly allowance of Rs. 1200 and Rs. 800/- respectively for their maintenance, on the basis of which petitioner was seeking cancellation of the order passed by learned court below under .
Section 125 of Cr.P.C. The contention of learned counsel for the petitioner was that the petitioner is physically handicapped and is being looked after by his father and on these basis it was prayed that he was not in a position to pay the monthly of allowance ordered by learned court below under Section 125 of Cr.P.C. In my considered view this is no ground on which an application can be filed under Section 127 of Cr.P.C.
rt
9. It is borne out from the records of the case that the petitioner in fact is running a Karyana Shop and is having a STD booth in his name and besides having income of about Rs.
10,000/- from the said business, he was also possessing agricultural land in his village. Keeping in view the said facts in my considered view learned court below rightly dismissed the application filed by the petitioner under Section 127 of Cr.P.C.
During the course of arguments learned counsel for the petitioner could neither point out any perversity with the findings so returned by learned court below in the impugned order nor it could be pointed out by learned counsel for the petitioner that the findings returned by learned court below vide order dated 19.9.2015 were not borne out from the records of the case. The only contention which was raised was this that because the ::: Downloaded on - 15/04/2017 21:21:45 :::HCHP 5 petitioner was physically handicapped, therefore, he was not in a position to pay maintenance allowance as was granted in favour of the respondents under Section 125 of Cr.P.C. vide order dated .
11.11.2009. As I have already held above, in my considered view this is no ground for modifying maintenance allowance which has been granted in favour of the respondents under Section 125 of Cr.P.C.
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10. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-
appreciation of evidence. The High Court in revision cannot in rt absence of error on a point of law, re-appreciate evidence and reverse a finding of law.
11. It is settled law that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals.
12. Thus, it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in ::: Downloaded on - 15/04/2017 21:21:45 :::HCHP 6 gross miscarriage of justice. However, I do not find any manifest illegality with the order passed by the learned court below in the present case.
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In view of the above discussion, I am of the considered opinion that there is neither any infirmity nor any perversity with the order passed by the learned court below hence the present petition is accordingly dismissed, so also of pending application(s), if any.
(Ajay Mohan Goel) Judge rt 5th October, 2016.
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