Karnataka High Court
Shri Shivappa S/O Bheemapap ... vs Kashawwa Calling Herself As W/O ... on 6 June, 2022
Bench: V.Srishananda
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CRL.P No. 101247 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO.101247 OF 2022 (482)
BETWEEN:
SHRI SHIVAPPA S/O BHEEMAPAP PUJERI,
AGE. 51 YEARS, OCC. AGRICULTURE,
R/O. ABASARAGI INAM SAUNDATTI,
TQ: SAUNDATTI, DIST. BELAGAVI-591114.
...PETITIONER
(BY SRI SANTOSH.B.RAWOOT &
SRI RAM P.GHORPADE, ADVOCATES.)
AND:
KASHAWWA CALLING HERSELF AS
W/O SHIVAPPA PUJERI,
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O. HANAMAGERI ONI, SAUNDATTI,
TQ: SAUNDATTI, DIST. BELAGAVI-591126.
...RESPONDENT
(BY SRI GURURAJ R.TURAMARI, ADV.)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
PRAYING TO QUASH THE ORDER DATED 19.01.2022 PASSED IN
CRIMINAL APPEAL NO.196/2021 BY THE X ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 101247 of 2022
ORDER
Though this matter is listed for admission, with the
consent of the parties, it is taken up for final disposal.
2. Heard Sri Santosh.B.Rawoot, learned counsel
for the petitioner and Sri Gururaj R.Turamari learned
counsel for the respondent.
3. This petition is filed under Section 482 of the
Criminal Procedure Code with the following prayer.
"Wherefore, it is respectfully prays that
this Hon'ble court may pleased to quash the
order dated 19.01.2022 passed in Criminal
Appeal No.196/2021 by the X Addl.District and
Sessions Judge, Belagavi in the interest of
justice and equity."
4. Brief facts of the case are as under:
The complaint came to be filed under Section 125 of
the Code of Criminal Procedure, 1973 ("Cr.P.C." for short)
in Criminal Miscellaneous No.187/2012 on the file of the
Addl.Civil Judge & JMFC, Saundatti by respondent-
CRL.P No. 101247 of 2022
Kashawwa against the petitioner-Shivappa seeking for
monthly maintenance as the petitioner has deserted the
respondent.
5. On contest, the said petition came to be
dismissed by holding that, the complainant-Kashavva was
not able to establish before the Court as she is the legally
wedded wife of petitioner-Shivappa.
6. Being aggrieved by the said order, initially the
complainant filed a revision petition before the Principal
District & Sessions Judge, Belagavi ("First Appellate Court"
for short) in Crl.R.P.No.459/2017. Later on, an application
came to be filed by the complainant, whereby the First
Appellate Court permitted the revision petitioner to
convert the said revision petition into criminal appeal. As
such the case was re-numbered as Crl.A.No.196/2021.
7. The petitioner-Shivappa appeared before the
First Appellate Court and objected that against the order
of dismissal of maintenance petition, no appeal lies and it
CRL.P No. 101247 of 2022
is only the revision petition. Again the First Appellate
Court permitted the appeal to be converted into the
revision petition. The said order is under challenge before
this Court.
8. In the petition, the following grounds are urged
by the petitioner.
The order/judgment passed by the X Addl.
District And Sessions Judge Belagavi in
Criminal Appeal No.196/2021 dated:
19/01/2022 is illegal and without
jurisdiction.
It is submitted that when the same court
passed order converting the revision
petition in to appeal and now one again
same court passed an order dated:
19/01/2022 closing appeal as not
maintainable and recalls earlier order
dated: 19/10/2021 and restoring the
revision petition to its filed as such one the
order passed by the Criminal Court in the
proceedings then it do not have power to
recall the same that restoring the earlier
CRL.P No. 101247 of 2022
proceedings when same Court has passed
the order as such order under Challenge is
without jurisdiction.
It is submitted that same Court when held
that revision petition filed by the
respondent is not maintainable and
converts the said revision into appeal and
later on same Court passes an order
stating that criminal appeal is not
maintainable and revision petition is
maintainable as such Court which passed
order holding that appeal is maintainable
and later on same Court cannot take
different view and say revision is
maintainable as such order under
challenge is against the settled principles
of law and same not tenable under eye of
law."
9. Reiterating the grounds urged in the petition,
Sri Santosh B.Rawoot learned counsel for the petitioner
contended that, conversion of the revision petition into
appeal and again from appeal to the revision petition is
unheard of and the Court does not possess necessary
CRL.P No. 101247 of 2022
powers to convert the revision petition into appeal and
again from appeal to revision petition resulting in
miscarriage of justice besides being putting hardship to
the petitioner herein and thus sought for allowing the
petition.
10. Per contra, Sri Gururaj R.Turamari learned
counsel appearing for the respondent-complainant
contended that due to wrong and ill advise, revision
petition which was duly filed challenging the order of
dismissal converted into appeal and again when the said
aspect of the matter was noticed, the appeal was ordered
to be converted into revision petition and the Court had
ample power to order for conversion of appeal to the
revision as the revision is maintainable.
11. Perused the material on record.
12. It is an admitted fact that the Crl.Miscellaneous
No.187/2012 came to be dismissed on the ground that the
complainant failed to establish her relationship with the
CRL.P No. 101247 of 2022
petitioner-Shivappa as wife and husband. Against such
order, properly a revision petition came to be filed before
the First Appellate Court in Cri.R.P.No.459/2017.
However, for the reasons best known to the petitioner-
wife, the said petition was converted into criminal appeal.
After appearance of the present petitioner-Shivappa, he
questioned the maintainability of the appeal and again the
appeal was converted into revision petition.
13. Sri Santosh B.Rawoot learned counsel for the
petitioner submits that, once the order came to be passed
by the First Appellate Court converting revision into
appeal, it did not have the power to re-convert the same
into revision petition and therefore sought for allowing the
petition.
14. There is some force in the argument put forth
on behalf of the petitioner. However, the right of the wife-
complainant cannot be lost sight of, due to the improper
conducting of the case before the First Appellate Court.
Accordingly reserving liberty to the respondent-wife to file
CRL.P No. 101247 of 2022
a fresh revision petition, challenging the order passed in
Crl.Miscellaneous No.187/2012 present petition is to be
allowed by quashing the order dated 19.01.2022 passed in
Crl.A.No.196/2021 by the First Appellate Court.
Accordingly this Court pass the following.
ORDER
The criminal petition is allowed.
However allowing of criminal petition and dismissing
of criminal revision petition No.459/2021 shall not come in
the way of the respondent-wife for filing fresh revision
petition before the appropriate Court challenging the order
passed in Criminal Miscellaneous No.187/2012.
It is made clear that, since the complainant-wife was
pursuing the matter before the First Appellate Court in
properly filed revision petition at the first instance, the
time which is spent in these proceedings needs to be
examined by resorting to Section 14 of the Limitation Act.
Ordered accordingly.
SD/-
JUDGE
EM
