Nissamudeen s/o Sainudeen v. Shyla Beegom Irshad Manzil and State of Kerala

**“C.R.”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940 Crl.MC.No. 1768 of 2017** **AGAINST THE ORDER IN CR.R.P NO.9/2015 of II ADDL.SESSIONS COURT KOLLAM DATED 09-11-2016** **AGAINST THE ORDER IN MC NO.40/2011 of J.M.F.C.-II, KOTTARAKKARA DATED 31-01-2015** ## **PETITIONER/S:** **NISSAMUDEEN S/O.SAINUDEEN,NISSAM MANZIL,IRAKUZHI MURI, CHITHARA VILLAGE, KOTTARAKARA, KOLLAM.** **BY ADVS. SRI.K.ABDUL JAWAD SMT.A.GRANCY JOSE SRI.MATHEW A KUZHALANADAN SRI.M.K.PRASANTH KUMAR** ## **RESPONDENT/S:** **1 SHYLA BEEGOM IRSHAD MANZIL,VELLORI MURI, NILAMEL VILLAGE,KOTTARAKARA, KOLLAM-691001. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031.** **BY ADVS. SRI.C.P.ANIL RAJ SRI.C.RAJENDRAN PP. SMT. M.K. PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1768 of 2017 2 ## **ORDER** This case would bring to light the failure of the system to provide swift justice to a divorced Muslim woman, who had secured an order in her favour from the jurisdictional Magistrate in the year 1997. She invoked the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and sought for reliefs against the petitioner. She was held entitled to money, valuables and jewellery. The petitioner managed to protract the proceedings for over two decades. Though all his challenges were repelled by the courts, the benefits granted to her by the courts are still eluding her. 2. The sequence of events would show that more than two decades back, the 1[st] respondent filed M.C.No.11/1996 before the learned Magistrate, Kottarakkara under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The said petition was disposed of on 3.12.97 allowing her to recover various item, including cash and valuables. Among other things, she was held entitled to 31 sovereigns of gold ornaments or its market value. This order was challenged by the petitioner herein before the Sessions Court in revision. The same was rejected. The 1[st] respondent, in the meanwhile, filed an execution petition to get the order enforced. The Crl.MC.No. 1768 of 2017 3 said order was challenged before this Court and an interim order of stay was obtained on condition that the petitioner deposits a sum of Rs.1,00,000/- before the Court below. After hearing the petition on merits, this Court dismissed the petition. 3. By passage of time, the value of gold creeped up. A new account statement was filed and claim for gold was enhanced from Rs.1.35 lakhs to Rs.3.59 lakhs. In the year 2009, a sum of Rs.4,84,600/- was paid to the 1[st] respondent and C.M.P.No. 3037 of 2005 was closed recording the same. 4. The 1[st] respondent then filed M.C.No.40 of 2011 for the balance amount due to her as per the original order. 5. The learned Magistrate, after considering the facts and circumstances, concluded that the payment of Rs.3,59,600/- paid by the petitioner would cover the value of 17.5 sovereigns of gold ornaments and it was further held that the 1[st] respondent was entitled to the balance 13.5 sovereigns or its market value. Challenging the said order, a revision petition was filed before the learned Sessions Judge. The court below, after evaluating the facts and circumstances, came to the conclusion that there was nothing in evidence to show that payment made on 3.11.2011 by the petitioner herein was towards Crl.MC.No. 1768 of 2017 4 full and final settlement of the claim of the 1[st] respondent. The said order is under challenge in this petition. 6. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 1[st] respondent and the learned Public Prosecutor. 7. The learned counsel appearing for the petitioner submitted that the learned Magistrate failed to appreciate the facts in its proper perspective. According to the learned counsel, the 1[st] respondent had filed a claim petition and after accepting certain amounts, the same was closed. In that view of the matter, the raising of a claim for realisation of 13.5 sovereigns of gold is clearly unsustainable, submits the learned counsel. 8. The learned counsel appearing for the 1[st] respondent submitted that the claim on all other heads were cleared by the petitioner except for the gold or its equivalent market value. The relevant aspects were considered by the trial court as well as the revisional court in its proper perspective and no interference is warranted, contends the learned counsel. 9. I have considered the submissions advanced. The petitioner Crl.MC.No. 1768 of 2017 5 herein has invoked the inherent powers of this Court to challenge the order passed by the Sessions Court in revision. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, ‘nothing in this Code’ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. Section 482 confers no new powers on High Court. It merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redressal of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law en-grafted in any other provision of the Code. 10. Section 397 (3) of the Cr.P.C., on the other hand, states that if an application under the section has been made by any person, Crl.MC.No. 1768 of 2017 6 either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by either of them. It is settled that despite the bar in Section 397(3), this Court can examine the correctness of an order which cannot be examined in a second revision by invoking the inherent power saved under Section 482 of the Code. If the power has been taken away by the statute or if the statute prohibits exercise of power, that cannot usually be bypassed by resort to Section 482 of the Cr.P.C. That would tantamount to invoking the inherent powers to do an act which is expressly prohibited. In other words, sans in extraordinary situations, the inherent power of this Court cannot be justifiably be invoked over the revisional order of the Sessions Judge so as to enable the defeated petitioner to have recourse to a second revision. Section 397(3) cannot be rendered a dead letter or inoperative by the exercise by the High Court of the same power under the garb of exercise of inherent power. ## 11. In **Krishnan and Another v. Krishnaveni and Another** [1997 (4) SCC 241], a three Judge Bench of the Apex Court had observed as follows: “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to Crl.MC.No. 1768 of 2017 7 the High Court under Section 397 (1)or under inherent power 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. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of 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 ensue. It is, therefore, to meet the 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 circumstance, to exercise the inherent power and in an appropriate case even revisional power and in appropriate case even revisional power under Section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity or procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. .................” Crl.MC.No. 1768 of 2017 8 12. Keeping in mind the contours of this Court's jurisdiction, I have examined the grounds raised by the petitioner. His contention appears to be that since he had effected some payment earlier and as the CMP filed earlier was closed, the respondent is not entitled to receive the gold or its equivalent value. Even now, the petitioner has no case that he had returned the entire gold or had paid its equivalent value. He has managed to drag on the matter for years together by initiating proceedings one after the other. The contentions now advanced by the petitioner were considered by the learned Magistrate and by the revisional Court and those were repelled. The object of the provisions being to render justice and to ensure that the reliefs are granted expeditiously, these dilatory tactics adopted by the petitioner cannot be countenanced. The findings arrived at by the trial court as confirmed by the revisional Court are unexceptionable and does not warrant interference in exercise of the powers under Section 482 of the Cr.P.C. It would result in travesty of justice, if the 1[st] respondent is deprived of the benefits of the order secured by her. This petition will stand dismissed. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE //TRUE COPY// P.A. TO JUDGE** IAP Crl.MC.No. 1768 of 2017 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNX.A TRUE COPY OF THE EXECUTION PETITION IN M.C.11/1996 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KOTTARAKARA. ANNX.B TRUE COPY OF THE SAID STATEMENT IN C.M.P.NO.3037/05 FILED BY THE 1ST RESPONDENT,BEFORE THE JUDUCIAL FIRST CLASS MAGISTRATE COURT-II,KOTTARAKKARA ANNX.C TRUE COPY OF THE MEMO IN C.M.P.N.3037/05,DTD.7-9-11,EVIDENCING THE RECEIPT OF THE PAYMENT BY THE 1ST RESPONDENT ANNX.D TRUE COPY OF THE MEMO IN C.M.P.NO.3037/05,DTD.3-11-11,EVIDENCING THE RECEIPT OF THE PAYMENT BY THE 1ST RESPONDENT ANNX.E TRUE COPY OF THE PETITION DTD.3/11/2011 IN M.C.40/11 FILED BY THE 1ST RESPONDENT,BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KOTTARAKARA. ANNX.F TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN M.C.40/11,BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTII,KOTTARAKKARA ANNX.G TRUE COPY OF THE ORDER DATED 31-01-2015 IN M.C.40/11 ON THE FILE OF JUDICIAL 1ST CLASS MAGISTRATE COURT-II,KOTTARAKKARA ANNX.H CERTIFIED COPY OF THE ORDER DATED 9.11.2016 IN CRL.R.P.NO.915,ON THE FILE OF 2ND ADDL.SESSIONS COURT,KOLLAM ANNX.I TRUE COPY OF THE INVITATION LETTER FOR THE MARRIAGE OF THE PETITIONER. RESPONDENTS' EXHIBITS:** NIL