Dr. Hrudananda Das vs State Of Orissa And Others on 15 January, 2018

IN THE HIGH COURT OF ORISSA, CUTTACK

WPCRL No. 324 Of 2008

From the order dated 05.06.2008 passed by the Addl. Sessions
Judge (Fast Track Court-II), Bhadrak in Criminal Revision No. 16
of 2007 and order dated 06.02.2007 passed by S.D.J.M.,
Bhadrak in Misc. Case No.48 of 2004.
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Dr. Hrudananda Das ……. Petitioner

-Versus-

State of Orissa
Others ……. Opp. Parties

For Petitioner: – Mr. P.R. Chhatoi

For Opp. Party No.2: – Mr. B.S. Dasparida

For Opp. Party No.1: – Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
—————————-

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Judgment: 15.01.2018

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S. K. SAHOO, J. The petitioner Dr. Hrudananda Das who is now

posted as Assistant Surgeon in C.H.C., Binjharpur, Jajpur has

filed this writ petition challenging the impugned order dated
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05.06.2008 passed by the learned Addl. Sessions Judge (Fast

Track Court-II), Bhadrak in Criminal Revision No. 16 of 2007 in

dismissing the revision and thereby confirming the impugned

order dated 06.02.2007 passed by the learned S.D.J.M., Bhadrak

in Misc. Case No.48 of 2004.

The opposite party no.2 Sumati Jena @ Das is the

wife of the petitioner and opposite parties nos. 3, 4, 5 namely

Swagarika Das, Adhatmika Das and Dipasikha Das are the

children of the petitioner and opposite party no.2. The opposite

parties nos. 2 to 5 filed a petition under section 125 of Cr.P.C. in

the Court of learned S.D.J.M., Bhadrak which was registered as

Misc. Case No. 48 of 2004 claiming maintenance against the

petitioner. The learned S.D.J.M., Bhadrak has been pleased to

allow the misc. case on contest and directed the petitioner to pay

monthly maintenance of Rs.1500/- (rupees one thousand five

hundred only) to each of the opposite parties nos. 2 to 5 from

the date of institution of the case i.e. from 02.04.2004 with a

further direction to the petitioner to pay the arrear maintenance

to the opposite parties nos. 2 to 5 within two months of the

order.

The petitioner preferred a revision before the Court

of Session which was heard by the learned Addl. Sessions Judge
3

(Fast Track Court-II), Bhadrak in Criminal Revision No. 16 of

2007 which was dismissed vide order dated 05.06.2008.

Mr. P.R. Chhatoi, learned counsel appearing for the

petitioner while challenging the impugned orders of the learned

Courts below contended that since the opposite party no.2

deserted the petitioner voluntarily, in view of section 125(4) of

Cr.P.C., she is not entitled to get any maintenance. He further

contended that the amount of maintenance fixed was on the

higher side and it should be reduced. In support of such

contention, the learned counsel for the petitioner filed the recent

pay slip of the petitioner which was issued by the Medical Officer

in charge, C.H.C., Binjharpur, Jajpur dated 21.09.2017.

Mr. B.S. Dasparida, learned counsel for the opposite

party no. 2 on the other hand contended that such a point was

raised before the learned Revisional Court which has dealt with

such point and held that there is no material to show that the

opposite party no.2 and the petitioner were living separately by

mutual consent or the opposite party no.2 had left the

matrimonial home voluntarily deserting the petitioner and she

was staying with her parents. It was further held that the

opposite party no.2 adduced evidence to prove that the

petitioner deserted her, torture her demanding more dowry for
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which a criminal case was initiated against him and the same is

subjudiced in the Criminal Court. It was further held that there is

no evidence from the side of the petitioner to prove that he tried

to get back his wife (opposite party no.2) and children (opposite

parties nos. 3 to 5) from the parents’ house of the opposite party

no.2 at any time or any case was instituted for restitution of

conjugal life. It was further held that there is no material on

record to show that the petitioner gave a bonafide offer to the

wife (opposite party no.2) and the wife refused the offer.

Accordingly, the learned Revisional Court turned down such

point.

Learned counsel for the opposite party no.2

contended that the opposite party no.2 was subjected to torture

in connection with demand of dowry for which a criminal case

was initiated against the petitioner in which the charge sheet has

been submitted under section 498-A of the Indian Penal Code. It

is further contended that when the second revision by the self-

same party is barred in view of the provision under section

397(3) of Cr.P.C., in absence of any gross illegality or perversity

in the impugned orders passed by the learned Courts below, this

writ petition should not be entertained.

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Section 397(3) of Cr.P.C. reads as follows:

“397(3). If an application under this section has
been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them.”

Law is well settled that the bar under section 397(3)

of Cr.P.C. cannot be circumvented either by taking recourse to

section 482 Cr.P.C. or by filing a writ petition. In case of

Krishnan -Vrs.- Krishnaveni reported in (1997) 13 Orissa

Criminal Reports (SC) 41, it is held that when the revision has

been barred by section 397(3) of the Code, a person cannot be

allowed to take recourse to the revision to the High Court under

section 397(1) or under inherent powers of the High Court under

section 482 of the Code since it may amount to circumvention of

the provisions of section 397(3) or section 397(2) of the Code.

When the High Court on examination of the record finds that

there is grave miscarriage of justice or abuse of the process of

the Courts or the required statutory procedure has not been

complied with or there is failure of justice or order passed or

sentence imposed by the Magistrate requires correction, it is but

the duty of the High Court to have it corrected at the inception

lest grave miscarriage of justice would ensure. It is, therefore, to
6

meet ends of justice or to prevent abuse of the process that the

High Court is preserved with inherent power and would be

justified, under such circumstances, to exercise the inherent

power and in an appropriate case even revisional power under

section 397(1) read with section 401 of the Code.

After going through the impugned orders, I find that

the learned S.D.J.M., Bhadrak has formulated five points and

discussed the evidence of the witnesses adduced from both the

sides and passed a reasoned order holding that it is an admitted

fact that the opposite party no.2 is the wife of the petitioner and

the opposite parties nos.3 to 5 are the children of both the

petitioner and the opposite party no.2. It has also been held that

the petitioner being a doctor neglected the opposite parties nos.

2 to 5 to maintain and further held that the opposite party no.2

was a jobless lady and she was not doing anything and residing

along with her children at Bhadrak. It was further held that the

opposite party no.2 had got no source of income of her own and

the petitioner has got sufficient means and he willfully refused to

maintain the opposite parties nos. 2 to 5. The learned revisional

Court has confirmed the findings arrived at by the learned

Magistrate. It has also considered the point relating to voluntary
7

desertion of the opposite party no.2 and answered in the

negative.

When there is background of torture to the opposite

party no.2 by the petitioner and a criminal case has been

instituted by her which has led to filing of the charge sheet, it

cannot be said that in such a scenario, if the wife lives separately

from the husband she would be disentitled from getting any

maintenance particularly when she has got no source of income

of her own.

Therefore, in absence of any illegality in the

impugned order of maintenance awarded by the learned

Magistrate which has been confirmed by the learned revisional

Court, I am not inclined to interfere with the same. So far as the

quantum of maintenance is concerned, section 127 of Cr.P.C.

provides for the aggrieved party to file appropriate application

for alteration of the maintenance amount. The petitioner is at

liberty to file any such petition before the appropriate Court

which will be considered in accordance with law.

Accordingly, the WPCRL application being devoid of

merits, stands dismissed.

…………………………

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 15th January 2018/Sukanta

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