SHAMSUDDIN AHMED, J. - (1.) THIS is an application under Article 227 of the Constitution of India in which an order passed by the 1st Additional Sessions Judge, Howrah in Criminal Motion No. 91/84 has been challenged on the ground that while disposing of the said motion the learned Sessions Judge has acted without jurisdiction inasmuch as the construction of law as made by him is absolutely wrong. To appreciate the point raised in this appeal a brief recall of the facts is necessary. Petitioner Santi Deb as wife O. P. Netai Chandra Deb filed an application under section 125 of the Cr.P.C. In defence one of the points raised by the opposite party was that she was not entitled to any maintenance as she was living in adultery with one Suphal Karmakar. Allegation of adultery was not accepted by the learned Magistrate. He awarded maintenance. This order was not interfered with by the learned Sessions Judge in a Revisional application filed by the husband O. P. Thereafter the petitioner initiated proceedings for realisation of the amount of maintenance awarded to her. In that proceeding the O.P. set up again the plea that she is living in adultery with Suphal Karmakar. As the learned Magistrate acting under Section 125(3) of the Cr. P C. directed the O. P. to deposit the arrears of rent in Court he moved the Sessions Judge, Howrah against that direction. In the said Revisional application the learned Sessions Judge was pleased to direct him to deposit the amount. Thereafter the O.P. filed an application under section 125 (5) of the Cr. P. C. for cancellation of the order on the plea that the petitioner was living in adultery. The learned Magistrate recorded evidence and came to the finding that the petitioner was living in adultery with the said Suphal Karmakar and as such is not entitled to receive the amount of maintenance. According to the learned Magistrate since the order was set aside the petitioner is not entitled to any arrears of maintenance whatsoever and it should be deemed that there was no order of maintenance at all. This order was challenged by the petitioner before the learned Sessions Judge in a Revisional application under Section 397 of the Cr. P. C. Unfortunately at the hearing of this Revisional application the petitioner was not represented. The Learned Judge dismissed the Criminal motion ex parte and he agreed with the finding of fact that the petitioner was living in adultery with Suphal and also confirmed the order of the learned Magistrate that the petitioner is not entitled to any maintenance as the order of cancellation wipes out the entire order of maintenance living nothing for the wife to execute. The learned Judge has relied on a decision reported in AIR 1957 Cal. page 115. Sm Kalyani Deb v. Nirmal Kumar Banda. This order of the learned Magistrate as well as the order of the learned Session Judge is being challenged in this application under Article 227 of the Constitution as well as as under Section 482 of the Cr. P. C.
(2.) MR . Banerjee appearing for the petitioner had stressed mainly two points in his support. According to him the principles of res judicata or principles analogous to it are applicable in a Criminal proceedings. As the O.P. raised a defence that the petitioner was living in adultery with Suphal Karmakar at the initial hearing of an application under Sections 125 Cr.P.C. and the learned Magistrate found that the allegation was baseless and it was also confirmed by the learned Sessions Judge in a Revisional application. The Courts below erred in entertaining this application which was already been decided by the court. The other points raised by Mr. Banerjee is that the cancellation of the order of maintenance takes effect from the date of the order. It has no retrospective application. As such the Courts below erred in not allowing the petitioner to receive her past maintenance which became due to her prior to the order of cancellation under section 125 (5) of the Code.
(3.) ON the 1st point that the principles of res -judicata applies to a criminal proceedings the learned Advocate relied on a decision reported in 1974 Calcutta Weekly Notes page 809 para 9 D. N. Bhattacharjee and Ors. v. State of West Bengal. Principles analogous to res -judicata is applicable to a Icriminal case is not now in dispute. In the instant case the position is also clear that the O. P. raised a defence that his wife is not entitled to an order of maintenance as she was living in adultery with Suphal. After it was negatived by the Courts below he again raised the plea under section 125 (3) and ultimately filed a petition for cancellation of maintenance under section 125 (5) Cr.P.C. There is no doubt that the petitioner is not entitled to raise the same plea again and again before the same Court. Since one it has been adjudicated it cannot be placed for adjudication once again but the scope of section 123 (3) Cr. P.C is wide enough to entertain such an objection by the Magistrate as he is to satisfy himself before executing the order that the O.P. has failed to comply with the order of maintenance without sufficient cause. But in raising such objection it must relate to a period after passing of the order of maintenance by the learned Magistrate under Section 125 Cr.P.C. Let us now look into the application filed by the O.P. in this case. In paragraph 2 of the petition he stated that the first party i.e. Santi Rani Deb is now residing in a tenanted house of Sudhangsu Dalui at village Makarda with her paramour Suphal Paramanik and thus she is leading a continuous adulterous life with the said paramour right from before this maintenance order upto this date. On a careful reading of this application it appears that the petitioner ascertained that on the date of the filing of the petition i.e. 11th February, 1983 the wife -petitioner was residing in a house at Makarda with Suphal Paramanik but he continued to assert that such adulterous life was being led by the petitioner right from before the maintenance order till the time of the filing of the application. Laying stress of the latter part of this allegation. Mr. Banerjee asserted that same objection as was taken by the petitioner at the time of hearing of the petition under section 125 (l) has again been raised in the proceedings under section 125 (3) of the Code. To me it appears that the basic allegation of the petition is that at the time of filing of the petition she was leading an adulterous life at Makurda precisely on this fact the Court below have found that she is living in adultery with Suphal Paramanik. But in doing so the Courts below did not care to find from what point of time she was living in adultery but this finding will riot render the proceeding illegal if the order passed by the learned Magistrate is found not to have any retrospective effect. From the evidence as well as the assertion in the petition under Sections 125 there is no doubt that the petitioner's case clearly was that at the time of filing of the petition she was living in adultery with Suphal. This being the concurrent finding of fact by both the, Courts, this Court will not intervene in an application under Article 227 of the Constitution of India or under section 482 of the Cr.P.C. As a result, I am unable to to accept the contention raised by Mr. Banerjee. In a decision reported in AIR 1957 Cal. 115, it was held that where it has been already decided upon evidence that the wife was not living in adultery upto a particular date and when the decision has not been set aside by a superior Court it is not open on general principle for another Magistrate or the same Magistrate to go into the same question over again. It have already noted that the allegation in the instant application under section 125 (5) relate to a period not decided by the learned Magistrate in the proceedings under section 125 (5). Second point raised by Mr. Banerjee, in my view, has sufficient force. In the aforesaid decision it was held that where an order of maintenance is cancelled it must mean as although the order of maintenance was never made and where such is the position there is no question of any order of maintenance being enforced for there is really nothing to enforce after the order has been cancelled. Learned Sessions Judge has also relied on the decision. Mr. Banerjee submitted that the learned Judge in the aforesaid reported decision failed to take into consideration another decision reported in AIR 1938 Cal. page 144 Tarubala v. Kebalram, in the said decision learned Judge decided that where an order directing a husband to pay maintenance to his wife is made and the order is subsequently cancelled under section 438 (5) the order of cancellation takes effect from the date of the order and has no retrospective operation. It cannot therefore affect the arrears due up to the date of the order. It may be mentioned that section 488 (3) and 485(5) of the Old Code are identical with Section 125 (3) and Section 125(5) of the present Code. As it appears now, two Hon'ble Single Judges of this Court have made contrary decisions on the same point. These two decisions were considered by Division Bench of Allahabad High Court reported in AIR 1971 Allahabad page 138 Mehurunnisa v. Nur Mahammed, The Division Bench concluded that the law enunciated in 1957 Calcutta page 115 is not good law. In a decision reported in AIR 1979 Supreme Court page 442 Bhupinder Singh v. Daljit Kaur, it was decided that if an order for maintenance has been made against the deserted it will operate until vacated or altered in terms of the provision of the Code itself. It was further held that until the original order of maintenance is modified or cancelled by a higher Court or is varied of vacated in terms of section 125(4) or (5) or section 127 its validity survives. It is clear from this decision of Supreme Court that the order passed under section 125 (1) will remain in force until varied or vacated under section 125 (4) or 125(5) or section 127 Cr.P.C. In the instant case as I have already pointed out that the allegation of leading an unvirtuous life related to a period subsequent to the date of the order. Therefore there was no disqualification on the part of the petitioner to receive the maintenance till she was found to be living in adultery. Moreover section 125(5) does not contain a provision to enable the learned Magistrate to pass an order with retrospective effect. There must be some enabling provision in the section itself on the basis of which an order having retrospective effect can be made. In view of the Supreme Court decision quoted above, in my view, the decision relied on by the Courts below namely 1957 Cal. 115 is no longer good law. In view of what has been stated above I have no hesitation in my mind to hold that the Court below exceed their jurisdiction in passing an order with retrospective effect. This part of the order is liable to be set aside.;