Sakeena v. Assainar and Safiya

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 ``` ``` CRL.REV.PET NO. 1644 OF 2011 AGAINST THE JUDGMENT DATED 23.02.2010 IN CRA 236/2009 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, MANJERI ``` ``` AGAINST THE ORDER DATED 03.07.2009 IN MC 54/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR ``` ## `REVISION PETITIONERS/APPELLANTS/RESPONDENTS:` ``` 1ASSAINAR, S/O. SAIDALI, PUTHIYATH HOUSE, KARULAI P.O., NEAR GOVERNMENT HOSPITAL, NILAMBUR TALUK, MALAPPURAM DISTRICT. ``` ``` 2SAFIYA, W/O.SAIDALI, PUTHIYATH HOUSE, KARULAI P.O., NEAR GOVERNMENT HOSPITAL, NILAMBUR TALUK, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.U.K.DEVIDAS ``` ## `RESPONDENTS/RESPONDENTS/PETITIONER AND STATE:` ``` 1SAKEENA, D/O. BEERAN, ARAKKALAKATH HOUSE, ERANGHIMANGAD P.O., AKAMPADAM VILLAGE – 679 343. ``` ``` 2STATE OF KERALA REP.BY THE SUB INSPECTOR OF POLICE, MELATTUR BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, COCHIN-31. ``` ``` BY ADV SRI.P.VENUGOPAL 108692 ``` ## `OTHER PRESENT:` ``` PP SMT PUSHPALATHA ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P.No.1644/2011 ``` ``` -:2:- ``` Dated this the 13[th] day of September,2023 ## **O R D E R** The revision petition is filed challenging the concurrent findings of the Court of the Judicial Magistrate of the First Class,Nilambur(Trial Court) in M.C.No.54/2007, and the Court of the Additional Sessions Judge(Adhoc)-I, Manjeri(Appellate Court) in Crl.A. No.236/2009. The revision petitioners were the respondents and the first respondent was the petitioner before the Trial Court. 2. The skeletal facts relevant for the determination of the revision petition are as follows: The first respondent had filed M.C.No.54/2007(in short, ‘petition’) before the Trial Court, inter alia, asserting that she is the legally wedded wife of the first revision petitioner and the second revision petitioner is the mother of the first revision petitioner. The first ``` Crl.R.P.No.1644/2011 ``` ``` -:3:- ``` revision petitioner and the first respondent have a daughter born in their wedlock. At the time of their marriage, the first respondent’s father had entrusted an amount of Rs.50,000/- and 30 sovereigns of gold ornaments to the first revision petitioner as the first respondent’s share in her parental properties. The said amount and the gold ornaments were misappropriated by the revision petitioners for the first revision petitioner to go abroad. Even though the first respondent demanded for the return of the money and the gold ornaments, the same was refused by the revision petitioners. The revision petitioners meted out domestic violence on the first respondent. In July, 2007, the revision petitioners expelled the first respondent from the shared household. From the said day onwards, the first respondent and the child are living in the first respondent’s parental home. The first respondent and her child do not have the means to ``` Crl.R.P.No.1644/2011 ``` ``` -:4:- ``` maintain themselves. The first respondent and the child require Rs.3,000/- & 1,500/- per month, respectively, for their monthly maintenance allowance. Hence, the petition. 3. The revision petitioners filed their counter statement, denying the allegations in the petition. They have, inter alia, contended that the first respondent is living separately from the first revision petitioner without any sufficient reason or cause. The revision petitioners are prepared to provide an alternative accommodation for the first respondent. Hence, the petition may be dismissed. 4. The first respondent and two witnesses were examined as PWs 1 to 3 and the second revision petitioner was examined as CPW1. 5. The Trial Court, after analysing the evidence and materials on record, by its order dated 03.07.2009 allowed the complaint by ordering the revision ``` Crl.R.P.No.1644/2011 ``` ``` -:5:- ``` petitioners not to cause any domestic violence against the first respondent, to pay the first respondent and the child maintenance at the rate of Rs.2,500/- and Rs.1,000/- per month from the date of petition and the first revision petitioner to pay an amount of Rs.2,36,000/- to the first respondent towards the value of the gold ornaments and a further amount of Rs.50,000/-. 6. Aggrieved by the said order, the revision petitioners filed Crl.A.No.236/2009 before the Appellate Court. 7. The Appellate Court, after re-appreciating the evidence and the materials on record, by the impugned judgment, dismissed the appeal confirming the order passed by the Trial Court. 8. It is these concurrent order and judgment passed by the courts below, that are assailed in this revision petition. ``` Crl.R.P.No.1644/2011 ``` ``` -:6:- ``` 9. Even though the revision petition was filed as early as on 04.04.2011, this Court has not admitted the revision petition and has not passed any order staying the operation of the impugned order passed by the Trial Court. 10. Heard; Sri. U.K. Devidas, the learned counsel appearing for the revision petitioners, Sri. P. Venugopal, the learned counsel appearing for the first respondent and Smt. Pushpalatha, the learned Public Prosecutor appearing for the second respondent. 11. The point is whether there is any illegality, impropriety or irregularity in the order and judgment passed by the courts below . 12. Before delving into the merits of the order and judgment, it is to be borne in mind that the revisional jurisdiction of this Court under Sections 397 to 401 of the Code of Criminal Procedure, 1973(in short, ‘Cr.P.C.’) is very narrow and supervisory in ``` Crl.R.P.No.1644/2011 ``` ``` -:7:- ``` nature. 13. It is well settled in a host of judicial pronouncements that the High Court shall not exercise its revisional unless the order is so jurisdiction, perverse, patently illegal and there is total non-consideration of the relevant materials on record. 14. It is apposite to extract the exposition of law in the above regard by the Hon'ble Supreme Court in **Sanjaysinh Ramroa Chavan v. Dattatray Gulabrao Phalke & Ors.** [(2015) 3 SCC 123], wherein it has been held as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. ``` Crl.R.P.No.1644/2011 ``` ``` -:8:- ``` The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 15. Keeping in mind the above principles of law, let in examine the revision petition. 16. The first respondent’s case in the petition that she is the legally wedded wife of the first revision petitioner. At the time of her marriage with the first revision petitioner, an amount of Rs.50,000/- and 30 sovereigns of gold ornaments were entrusted to the revision petitioners as her share in her parental properties. The gold and the money were ``` Crl.R.P.No.1644/2011 ``` ``` -:9:- ``` misappropriated by the revision petitioners for the purpose of the first revision petitioner going abroad. In July, 2007, the revision petitioners drew away the first respondent from the shared household. She does not have the means to maintain herself and her child. Hence, the first respondent is entitled for an order for return of money, gold ornaments and maintenance. 17. The revision petitioners refuted the allegations by filing a counter statement. 18. The first respondent examined herself and two other witnesses as PWs 1 to 3, who deposed in line with the assertions in the petition. 19. In order to prove the defence, the second revision petitioner was examined as CPW1. 20. The Trial Court, after examining the pleadings and materials on record, particularly, the oral testimonies of PWs 1 to 3, arrived at the conclusion that the first respondent’s father had ``` Crl.R.P.No.1644/2011 ``` ``` -:10:- ``` entrusted an amount of Rs.50,000/- to the first revision petitioner and the first revision petitioner had misappropriated 29½ sovereigns of gold ornament, the value of which was fixed at Rs.2,36,000/-. Similarly, it was found that the first respondent and the child were driven away from the shared household and they did not have the means to maintain themselves, despite the first revision petitioner having the means to maintain her. 21. Consequently, the Trial Court allowed the petition by directing the first revision petitioner to pay the first respondent and the child Rs.2,500/- & 1,000/per month towards monthly maintenance allowance. Also, the Trial Court directed the first revision petitioner to pay the first respondent an amount of Rs.2,36,000/- towards the value of gold ornaments and to return of Rs.50,000/- that was entrusted at the time of marriage. ``` Crl.R.P.No.1644/2011 ``` ``` -:11:- ``` 22. The Appellate Court, after re-appreciating the pleadings and materials on record, also arrived at the same conclusion that the case put forth by the first respondent was believable and acceptable and resultantly, dismissed the appeal, confirming the order passed by the Trial Court. 23. On an anxious consideration of the impugned order and judgment passed by the courts below, pursuing the records and hearing the respective counsel appearing for the parties, I do not find any illegality, impropriety or irregularity in the concurrent findings of the courts below, in rendering the impugned judgment and order, which has been rendered after appreciating and accepting the oral testimonies of PWs 1 to 3. The first respondent has successfully established her case on the basis of preponderance of probability, and I do not find any valid ground to take a contrary view. ``` Crl.R.P.No.1644/2011 ``` ``` -:12:- ``` The revision petition is meritless and is consequently, dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/13.09.23 //True copy// P.A.To Judge