P. UMMUKULSU v. MUHAMMED ASHRAF, and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936** ## **Crl.MC.No. 3993 of 2011 (D)** **-------------------------------------[CRL.R.P.NO.61/2009 OF THE SESSIONS COURT, KOZHIKODE, M.C. NO.09/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM]** **..........** **PETITIONER:** - **-------------------** **P.UMMUKULSU, D/O.KUNHALI HAJI, BADRIYA MANZIL, VALIYAPARAMBIL, P.O.PERUMUGHAM, KOZHIKODE.** ## **BY ADV. SRI.MANJERI SUNDER RAJ.** **RESPONDENTS:** **-----------------------** **1. MUHAMMED ASHRAF, S/O.M.K.MOIDEEN HAJI, KATTAYATTUPOYIL, NEAR PUTHIYEDATH SCHOOL, KUTTIKATTOOR, KOZHIKODE.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS.SRI.K.M.FIROZ, SRI.K.NAZEER, SMT.M.SHAJNA, R2 BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.3993/2011-D:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE 1: TRUE COPY OF THE ORDER DTD. 12/08/2004 IN M.C. 09/2001 BY J.F.C.M. COURT, KOZHIKODE.** **ANNEXURE 2: TRUE COPY OF ORDER DTD. 13/07/2011 BY SESSIONS JCOURT, KOZHIKODE IN CRL.R.P.NO.61/2009.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.3993 of 2011 ---------------------------------------------Dated this the 22[nd] day of May, 2014 ## **ORDER** This petition is filed u/s.482 Cr.P.C to quash Annexure-2 of the Sessions Court, Kozhikode in Crl.R.P.No.61/2009. The above revision petition was preferred against the order in M.C.No.9/2001 of Judicial First Class Magistrate Court-I, Kunnamangalam. The petitioner filed the above M.C. in the trial Court u/s.3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 claiming maintenance from her former husband, which was allowed by the learned Magistrate. Against that order, the husband preferred the above criminal revision petition, which was allowed in part by the learned Sessions Judge by modifying the order of the learned Magistrate, Kunnamangalam. Aggrieved by that order, the petitioner approached this Court to quash the above proceedings by invoking the inherent jurisdiction. 2 Crl.M.C.No.3993/11 2. M.C.No.9/2001 was filed by the petitioner alleging that the 1[st] respondent married her as per customary rites on 20.2.1999. At the time of marriage, she was given 85 sovereigns of gold and Rs.75,000/- as her share. She purchased the property by utilising 20 sovereigns of gold and paying an amount of Rs.75,000/- and the remaining ornaments were taken away by the 1[st] respondent. Subsequently, the marriage was dissolved by the Family Court, Kozhikode in O.P.No.255/2000 and thereafter she filed the above M.C., in which the learned Magistrate granted recovery of Rs.18,400/- towards reasonable and fair provision and future maintenance and Rs.24,000/- as Mahr and directed to pay sum of Rs.4,500/- during iddat period, Rs.75,000/- appropriated by the husband and Rs.2,08,000/as value of the gold ornaments from him, totalling Rs.3,29,900/- within three months from the date of the order. Against that order, the husband preferred revision petition, in which the learned Sessions Judge confirmed the order of lower Court granting maintenance during iddat period and also reasonable and fair provision of maintenance and Crl.M.C.No.3993/11 3 realisation of Rs.75,000/- from the revision petitioner without any interference, but modified the value of ornaments to the effect that the petitioner is entitled to receive only the value of 20 sovereigns of gold ornaments from the 1[st] respondent or Rs.64,000/- at the rate claimed by the petitioner in the petition with interest at the rate of 6% per annum from the date of petition till realisation and the claim for 45 sovereigns of gold ornaments was declined. In the circumstances, the petitioner wife approached this Court with this petition to quash Annexure-2 order. 3. The learned counsel appearing for the petitioner contended that the second revision before this Court is prohibited by Section 397(3). Therefore, inherent power is available to the petitioner. She also contended in her petition that the correct appreciation of evidence was not made by the revisional Court for reaching a fair conclusion. There was sufficient pleading in the petition for granting the entire claim in the petition. The finding of the court below regarding 45 sovereigns of gold is baseless and senseless in the absence of pleadings and evidence. Therefore, the revisional Court Crl.M.C.No.3993/11 4 erred in analysing the evidence and pleadings. Hence, the petitioner seeks to quash the proceedings in Annexure-2 order. 4. The learned Public Prosecutor and the learned counsel appearing for the 2[nd] respondent strongly resisted the above contention and contended that there is nothing to interfere in the order of revisional court. There was no sufficient pleadings or evidence in the petition to support the claim of the petitioner to grant such relief. No circumstances are brought before this Court to invoke inherent jurisdiction, hence,they pray to dismiss the petition. 5. First, I consider whether the inherent power u/s.482 Cr.P.C. can be invoked when there is bar u/s.397(3) of the Code of Criminal Procedure Code. It is clear that there is a prohibition u/s.397 (3) Cr.P.C. to proceed with a second revision, but, inherent power of the High Court is still available under Section 482 of the Code. This view was explained by the Apex Court in _**Krishnan v. Krishnaveni**_ (1997) 4 SCC 241) (para 14) In _**Rajathi**_ v. _**C.Ganesan**_ [AIR 1999 SC 2374], Apex Court held as follows: Crl.M.C.No.3993/11 5 “10. In Krishnan v. Krishnaveni (1997) 4 SCC 241: (1997 AIR SCW 950: AIR 1997 SC 987: 1997 Cri LJ 1519) this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, inherent power of the High Court is still available under Section 482 of the Code. This Court said as under (para 10 of AIR SCW): '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 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. 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 records 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 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 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. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of 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. The recent trend is to delay the trial and threaten the witness or to win over the witness by Crl.M.C.No.3993/11 6 promise of inducement. These malpractices need not be curbed and public justice can be ensured only when trial is conducted expeditiously.” The same principle was followed by the Apex Court in _**Shakuntala Devi**_ & ors. v. _**Chamru Mahto and anr.**_ [AIR 2009 SC 2075], in which it is held as follows: “17. We have carefully considered the Submissions made on behalf of the respective parties and we see no reason to take a stand which is different from the stand that was taken both in Dayanand's case (supra) and Krishnan's case (supra). It is well settled that the object of the introduction of subsection (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge was not completely closed and in special cases the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code, and was capable of being invoked in appropriate cases. Mr. Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.” 6. In order to attract 482 Cr.P.C., there are certain limitations to this Court. The inherent power can be exercised to make such orders as may be necessary to give effect to any order or to prevent abuse of process of the Court or otherwise to secure the ends of justice. If any ground other Crl.M.C.No.3993/11 7 than the grounds mentioned u/s.482 Cr.P.C. is invoked, it is outside the scope of that Section. Therefore, this Court is not inclined to analyse the evidence adduced by the petitioner as to whether the conclusion reached by the revisional court is correct or not. The scope of invoking Section 482 Cr.P.C. has been explained by the Apex Court in the _**State of** v_ . _**Haryana Bhajanlal**_ [1992 SCC (Crl) 426], which reads as follows: “(1) Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused. (2) Where the allegations in the FIR of other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an order of a Magistrate within the purview of Section 155(2). (3) Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence. (4) Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of Magistrate under Section 155(2). (5) Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a Crl.M.C.No.3993/11 8 criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accuse with a view to spite him due to private and personal vengeance. 7. The petitioner's claim was that the trial Court has not considered the pleadings and evidence in the above case. I have perused Annexure-2 order passed by the learned Sessions Judge. In paragraph 16 of point No.3, the learned Sessions Judge analysed the pleadings and evidence with regard to the claim of the petitioner. The photographs in Exts.P2 and P5 are not a conclusive evidence for the huge quantity of ornaments given to the petitioner at the time of marriage. For corroborating the claim of the ornaments given at the time of marriage, the petitioner has not adduced any other evidence. But considering the photographs and other documents, the learned Sessions Judge held that the claim for 25 sovereigns of gold ornaments is acceptable in the absence of contra evidence. But, it is difficult to consider 45 sovereigns in the absence of any specific pleading and evidence. No bills were produced to prove the purchase of gold ornaments to substantiate the contentions raised by the 9 Crl.M.C.No.3993/11 petitioner before the trial Court or in the revisional court. Therefore, the learned Sessions Judge answered the point properly and granted relief. The learned Sessions Judge observed that the value of 20 sovereigns of gold ornaments or Rs.64,000/- at the rate claimed by her in the petition with interest at the rate of 6% per annum from the date of petition is reasonable. I find no illegality in the order passed by the learned Sessions Judge. Therefore, I am of the view that this is not a fit case to invoke the inherent jurisdiction u/s.482 of Cr.P.C. at this stage to quash Annexure-2 order. Therefore, there is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.3993/11 10 Crl.M.C.No.3993/11 11