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
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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
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(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
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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
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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