Smt. Bhawana Sharma & Anr. vs Shri Shyam Sunder Sharma
2012 Latest Caselaw 1938 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl.M.C. No.2725/2010

                                           Date of Decision: 21.03.2012

Smt. Bhawana Sharma & Anr.                              ...... Petitioners

                         Through:     Mr. M. Gautam, Advocate

                                 Versus

Shri Shyam Sunder Sharma                           ...... Respondent

                         Through:     Mr. Satpal Singh, Advocate


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. This is a petition under Section 482 Cr.P.C. read with Article 227

of Constitution of India assailing the order dated 24.05.2010 passed by

learned Addl. Sessions Judge in Crl. Rev. P. 26/2009 dismissing the

revision petition of the petitioner preferred against the order dated

21.1.2009 passed by learned MM.

2. The petitioner was aggrieved by the said order dated 21.1.2009 of

the learned MM whereby the respondent was directed to pay an amount

of Rs.8,000/- per month to petitioner No.1 and an amount of Rs.5,000/- to

petitioner No.2 w.e.f. 01.01.2006. Against the order, the petitioner filed

the revision petition No.26/2009 before the Court of learned Addl.

Sessions Judge on the ground that the sum awarded to the petitioners was

insufficient to meet their requirements. Dismissing the revision petition,

the learned ASJ opined that at the stage of granting interim maintenance

the contentions of the petitioner that the respondent has hidden income

could not be taken into account and consequently the order of the learned

MM did not suffer any illegality or impropriety that would call for

interference in the exercise of the revisional powers vested in the court.

3. The impugned orders are challenged mainly on the ground that

these are contrary to material on record as while awarding interim

maintenance to the petitioners, both the courts have not taken into

account the true income of the respondent and have awarded insufficient

amount of maintenance. The counsel for the petitioners has prayed for

increase in the maintenance amount.

4. Per contra, the learned counsel for the respondent has submitted

that the instant petition is not maintainable as it amounts to second

revision petition against an interim order under the guise of Section 482

Cr.P.C.

5. I have heard the learned counsel for the petitioners and the

respondent.

6. The issue regarding filing of the petition before the High Court

after having availed first revision before the Court of Sessions has come

up before the Apex Court and this Court several times. It has been

reiterated by the courts that although Section 397(3) Cr.P.C. casts a

statutory bar on second revision petition, but the High Court in the

exercise of its inherent jurisdiction under Section 482 Cr.P.C. can

entertain these petitions, but only in extraordinary circumstances. This

inherent power is to be exercised sparingly and with great caution,

particularly when the remedy of first revision has been availed of by the

revisionist. If the issue has been already decided by the court in the first

revision petition, then the same issue cannot be raked up in the second

revision petition unless there has been gross miscarriage of justice. The

inherent power possessed by this Court can also be exercised if there was

an apparent mistake committed by the Revisional Court. Reliance can be

placed on Madhu Limaye Vs. State of Maharashtra (1977) 4 SCC 551,

State of Orissa Vs. Ram Chandra Aggarwal, AIR SC 87, Raj Kapoor

Vs. State (Delhi Admn.) 1980 Crl.LJ 202.

7. In the case of Kailash Verma vs. Punjab State Civil Supplies[2005 (2) SCC 571] while dealing with the question regarding second revision before the High Court after dismissal of the first one by the Sessions Court and powers of High Court under Section 482 Cr.PC, the Supreme Court held as under:

"5. In Krishnan and Anr. v. Krishnaveni and Anr. , this question came up for consideration. That was a case where the complaint was registered under Sections 420, 406 IPC. After inquiry, the police filed a report stating that the case was essentially of a civil nature and no offence was made out. The complainant brought the matter to the Superintendent of Police. As per the directions of the Superintendent of Police, the case was investigated by the Crime Branch and a fresh report was filed under Section 173 IPC. On receipt of the report, the Magistrate took cognizance of the offences under Sections 420 and 406 IPC. Thereupon, the appellant/accused filed an application for discharge and the accused was discharged by the Magistrate. The complainant filed a revision before the Sessions Court and the revision was dismissed. On further revision by the complainant, the High Court set aside the order of the Magistrate and directed the trial of the criminal case on merits. This was challenged on the ground that the second revision was not maintainable. A Bench consisting of three Judges of this Court held :

"'......though the revision before the High Court under Sub- section (1) of Section 397 is prohibited under Sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below."

Reliance was placed in that case on the decision in V.C. Shukla v. State though CBI ."

8. In the case of Madhu Limaye v. The State of Maharashtra [(1977) 4 SCC 551], the Supreme Court laid down three principles with regard to the exercise of inherent powers of this Court as under:-

"(i) 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;

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

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

9. The question that now comes up for the consideration is that

whether the instant case requires interference by this Court under Section

482 Cr.P.C. and Article 227 of Constitution of India. From the perusal of

the first revision petition and the instant petition, it is seen that the

grounds taken up by the petitioner No.1 here and before the Court of ASJ

are identical. Though the present petition is filed under Section 482

Cr.P.C. and Article 227 of Constitution of India, but it is nothing, more

than a second revision against the order of the learned MM.

10. The maintenance awarded to the petitioners is interim in nature and

has not attained finality. The issue raised by the petitioner No.1 that the

salary of the respondent is much more than that is presented before the

Trial Court is a triable one and cannot be decisively gone into by this

Court. There is nothing on record to warrant a second revision petition

on the same ground as taken up in the first revision petition before

learned ASJ. Moreover, the respondent has also filed a revision petition

against the order dated 21.1.2009 awarding interim maintenance to the

petitioners, which is pending disposal before the learned ASJ, Rohini

Courts.

11. In the light of the above factual matrix and judicial

pronouncements, I am of the view that it is not a case that would come

within the parameters of invoking inherent jurisdiction of this Court

under Section 482 Cr.P.C. and Article 227 of Constitution of India.

Nothing material could be pointed out by the learned counsel for the

petitioners that would warrant entertaining this petition against the

impugned orders.

12. I find no illegality or perversity in the impugned orders. The

petition, therefore, being devoid of any merit is hereby dismissed.

M.L. MEHTA, J.

March 21, 2012 ss/skw