Deoki Nandan - (1.) BY this application under Section 482 of Criminal Procedure Code, the applicant who is the husband of the second opposite party has prayed for the quashing of the order dated 18th August, 1977, of the court of Special Judicial Magistrate, Bareilly, directing the applicant to pay Rs. 100/- per month as maintenance from the date of the order to the wife, under Section 125 of the Code of Criminal Procedure, as also the order dated 9th February, 1978, passed by the court of the Vth Additional Sessions Judge, Bareilly, dismissing the applicant husband's revision therefrom under Section 397 of the Code.
(2.) A preliminary objection has been raised by the learned counsel for the second opposite party against the maintainability of the application on the ground that a second revision at the instance of the same party being barred by sub-section (3) of Section 397 and also by sub-section (3) of Section 399 of the Code, the applicant could not be allowed to circumvent those provisions by having resort to the inherent powers of this court under Section 482. Learned counsel relied on Amarnath v. State of Haryana, AIR 1977 SC 2185, and contended that the same principle which is applicable to interlocutory orders should be applied to a second revision. The Supreme Court laid it down in that case that a harmonious construction of Sections 397 and 482 would lead to the irresistible conclusions that where a particular order is expressly barred under section 397 (2) and cannot be a subject of revision by the High Court, them to such a case, provision of Section 482 would not apply. The reason given was that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject-matter and when there is an express provision barring a particular remedy, the court cannot resort to exercise the inherent powers; and it was held that, in view of the express bar under section 397 (2), against revision of an interlocutory order, the inherent powers of the High Court under Section 482 were not available to defeat that bar. The rule so laid down in that case: has been modified by the Supreme Court itself in its judgment decision in Madhu Limaye v. State of Maharashtra, 1978 AWC 96. Moreover, there is a distinction between that case and the present one. By sub-section (2) of Section 397, the powers of revision of an interlocutory order which the High Court possessed under the Code of 1898 were expressly taken away. On the other hand, the effect of sub-section (3) of Section 397 as well as of Section 399, is only to prevent a party from applying to the High Court for revision, if its application for revision to the Sessions count has been dismissed. The order of the Sessions court, is made final as against that party and what is barred is any further proceeding by way of revision at the instance of that person before the High. Court or any other court. That is, however, not to say that the powers of revision conferred on the High Court u/S. 397 cease to exist. The bar is against the party whose revision has been unsuccessful before the Sessions court, and not against the High Court is exercising its powers of revision, for the High Court can undoubtedly entertain a second revision at the instance of the party who was not an applicant for revision in the Sessions Court. The other case cited by learned Counsel for the opposite party in support of preliminary objection was that of State of Orissa v. Ram Chandra, AIR 1979 SC 87. In that case, the Supreme Court laid it down that the provisions of Section 561-A of 1898 Code cannot be invoked for exercising a power the exercise of which is expressly prohibited by the Code, the power in question being the power of reviewing a judgment. That case is clearly distinguishable and in view of what has been said above, the principle laid down therein cannot be applied to the case in hand. The next case cited by the learned counsel for the opposite party was that of Dassu v. Smt. Manitra, 1976 AWC 78. In that case, an order under Section 488, obviously of 1896 Code was challenged. A revision against that order had also been filed, being Criminal revision no. 31 of 1974 which had been dismissed on 6th May, 1975. It was in that context, that H. N. Kapoor, J. remarked that no second revision lies under section 397 (3), and the provision of Section 482 "cannot be invoked for the purpose of circumventing the express provisions under the Code." Even so, the learned Judge entertained the points raised by the learned counsel for the applicant and did Dot dismiss the application under Section 482 on the ground that it is not maintainable, but dismissed it on the merits. This case cannot, therefore, be said to be an authority for the proposition that where a revision has been dismissed by the court of Sessions, this court cannot under any circumstances entertain an application under Section 482 of Code of Criminal Procedure at the instance of a person who had tiled the revision before the Sessions court. The preliminary objection is overruled.
(3.) COMING to the merits of the application, inherent powers of this court ought to be used to make such order as may be necessary to give effect to any order under the Code, "or to prevent abuse of the process of any court or otherwise to secure the ends of justice." The question is whether there has been any abuse of process of court or whether the impugned order, if allowed to stand, will occasion a failure of justice. It is not necessary to go into the facts of the present case in any detail. The only fact relevant for the purpose of deciding this application is that the monthly income of the husband was Rs. 340/- while that of his wife was Rs. 190/- per month. This fact has been concurrently found by the two courts below. Learned counsel for the applicant relied on the declaration of the law by the Supreme Court in Bhagwan Datta v. smt. Kamla Devi, AIR 1975 SC 83. In that case the Supreme Court had occasion to consider and compare the provisions of Section 488 of the Code of Criminal Procedure, 1898 with the provisions of Section 125 Code of Criminal Procedure, 1973. The question before the Supreme Court in that case was whether the means of the wife could be taken into consideration while fixing the quantum of maintenance under Section 488 of the 1898 Code. Overruling the decision of Punjab High Court in Major Joginder v. Bibi Raj Mohinder Kaur, AIR I960 Pun. 249, and that of the Delhi High Court in Nanak Chand Benarsi Das v. Chander Kishore, AIR 1969 Delhi 235; the Supreme Court held that means of the wife had necessarily to be taken into account in determining the quantum of maintenance allowable to her although Section 488 of the Code of Criminal Procedure, 1898, did not lay down that a wife must be a person unable to maintain herself. With regard to the comparison of the provisions of Section 488 of the 1898 with those of Section 125 of 1973 Code the Supreme Court observed as follows :- "In our opinion, one wrong assumption has led to another false deduction. The mere fact that the language of Section 488 (1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife's own separate income or means of support. There is a clear distinction between a wife's locus standi to file a petition u/S. 488 and her being entitled, on merits, to a particular amount of maintenance thereunder. This distinction appears to have been overlooked in Major Joginder Singh's case A.I.R. 1960 Punj. 249 (supra). Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband." "The objection of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also is taken into account together with the earnings of the husband and his commitments." ;