@JUDGMENTTAG-ORDER
Honourable Mr. Justice A. Arumughaswamy
1. The present petition is filed to call for the records in MC 34/2008 from the file of the Judicial Magistrate No. 1, at Tiruppur and pass such other orders by this Court by invoking the jurisdiction of Section 483 Cr.P.C. in order to secure the ends of justice and to prevent the abuse of process of lower subordinate judiciary in order to ensure the proper disposal of MC 34/2008 by the learned Judicial Magistrate No. 1 of Tiruppur.
2. The petitioner is the husband and the first respondent is the wife. The second respondent is the Judicial Magistrate No. 1, Tiruppur and the third respondent is the Subordinate Judge, Tiruppur.
3. The averments in the petition is that the petitioner married first respondent on 6.10.2006 and due to the strain relation relationship, the petitioner and the first respondent themselves got separated from marriage life. The petitioner filed divorce petition in HMOP No. 69 of 2008 before the Court of Subordinate Judge, at Ponneri. The first respondent filed maintenance case u/s 125 of Cr.P.C. before the Court of Judicial Magistrate No. 1, at Tiruppur in M.C. No. 34 of 2008. Thereafter, the first respondent filed Tr.C.M.P. No. 40 of 2009 on the file of this Court u/s 24 of C.P.C. to withdraw the divorce petition in HMOP No. 69 of 2008 from the file of Sub-Court, Ponneri to the file of Sub-Court, Tiruppur to be tried jointly with MC. No. 34 of 2008 filed by the first respondent and this Court passed an ex-parte order dated 25.03.2009. Pursuant to the order passed by the Court, HMOP No. 69 of 2008 was transferred to the file of Sub-Court, Tiruppur and it was renumbered as HMOP No. 202 of 2009. However, the order passed by this Court in Tr.C.M.P. No. 40 of 2009 was not communicated to the Judicial Magistrate No. 1, at Tiruppur. According to the petitioner, after fully knowing the order passed by this Court transferring the MC. No. 34 of 2008 to be tried along with HMOP No. 202 of 2009, the learned Judicial Magistrate No. 1, Tiruppur has disposed of the MC. No. 34 of 2008 on 9.4.2011 thereby disobeying the lawful order passed by this Court in Tr.C.M.P. No. 40 of 2009.
4. The petitioner has filed this petition to recall the records in M.C. No. 34 of 2008 from the file of the Judicial Magistrate No. 1, Tiruppur and pass such other orders by invoking the jurisdiction of Section 483 of Cr.P.C. in order to secure the ends of justice and to prevent the abuse of process of lower subordinate judiciary in order to ensure the proper disposal of M.C. No. 34 of 2008 by the learned Judicial Magistrate No. 1, at Tiruppur.
5. On scrutiny of the records, the Registry felt doubt regarding maintainability of the above petition and the papers were returned on 12.11.2011 with the endorsement that cause title needs revision, how the Judicial Officers are included as respondents 2 and 3 as party to the proceedings and the prayer needs specific.
6. The learned counsel for the petitioner has represented the papers on 14.11.2011 with the following endorsement:
i. It is submitted that since the third respondent namely the Presiding Officer of Sub-Court, Tiruppur has violatd the lawful order passed by this Court in Tr.C.M.P. No. 40 of 2009 dated 25.3.2009 by way of disobeying the direction of this Court i.e. failed to hear the re-numbered H.M.O.P. No. 202 of 2009 along with M.C. No. 34 of 2008 by calling for the records from the file of the second respondent, there is gross miscarriage of justice done by the third respondent which resulted in improper disposal of M.C. No. 34 of 2008 by the second respondent namely Judicial Magistrate No. I, Tiruppur and hence this Court shall so exercise its Superintendence over the Subordinate Judiciary for the improper disposal of M.C. No. 34 of 2008 by the second respondent at the cost of the third respondent and to prevent the abuse of the process of the second and third respondent by exercise of power under Sections 482 r/w 483 of Cr.P.C. and hence the second and third respondent Judicial Officers are necessary parties to the proceedings in this case.
ii. It is further submitted by the learned counsel for the petitioner that since the reason arraying the second and third respondents are very much necessary parties to the proceeding, the cause title does not require or warrant any revision.
iii. It is further submitted that the illegality appears to have been committed by the second and third respondents are enlightened in this petition and as such the prayer does not require any specific.
iv. Since the Registry still feels doubt regarding the maintainability of the above petition, it has been listed before this Court for necessary orders.
7. Heard the learned counsel for the petitioner and perused the materials placed on record.
8. The vehement contention of the learned counsel for the petitioner is that the order passed by this Court in Tr.C.M.P. No. 40 of 2009 has not been given effect to by the Subordinate Judge, Tiruppur and thereby giving way for improper disposal of M.C. No. 34 of 2008 by the second respondent.
9. The petitioner is the husband who has filed this petition to call for the records in MC 34/2008 from the file of the Judicial Magistrate No. 1, at Tiruppur and pass such other orders by this Court by invoking the jurisdiction of Section 483 Cr.P.C. in order to secure the ends of justice and to prevent the abuse of process of lower subordinate judiciary in order to ensure the proper disposal of MC 34/2008 by the learned Judicial Magistrate No. 1 of Tiruppur.
10. The marriage between the petitioner and the first respondent is not in dispute. The petitioner in his petition has stated that the marriage between him and the first respondent was solemnized on 6.10.2006 and thereafter they were separated from the matrimonial home and the petitioner/husband filed a divorce petition in HMOP 69 of 2008 on the file of the Sub Court, Ponneri in which the first respondent/wife has entered into appearance. Further, it is stated that the first respondent filed a petition against the petitioner/husband u/s 125 of Cr.P.C. for maintenance in M.C. No. 34 of 2008 on the file of the Judicial Magistrate No. I, Tiruppur. At that juncture, the first respondent/wife has filed Tr.CMP. No. 40 of 2009 before this Court u/s 24 of C.P.C. to withdraw the HMOP 69 of 2008 from the file of Sub Court Ponneri and requesting to transfer the same to Sub-Court, Tiruppur to be tried along with M.C. No. 34 of 2008. After enquiry, Tr.CMP. No. 40 of 2009 was ordered by this Court on 25.3.2009 which runs as hereunder:
4. In fine, the transfer petition is allowed withdrawing theH.M.O.P. No. 69 of 2008 pending on the file of the Subordinate Judge, Ponneri and transferring the same to the file of the Subordinate Judge, Tiruppur to be tried along with M.C. No. 34 of 2008 and disposed of in accordance with law.
11. As per the said order, H.M.O.P. No. 69 of 2008 which was pending before the Subordinate Judge, Ponneri, has been transferred to the Subordinate Judge, Tiruppur. Thereafter, the husband filed a petition u/s 24(1)(3) of C.P.C. in Tr.C.M.P. No. 176 of 2009 seeking to modify the order passed in Tr.C.M.P. No. 40 of 2008 dated 25.3.2009 and to transfer the H.M.O.P. No. 69 of 2008 from the file of Subordinate Judge, Tiruppur to the file of Family Court, Coimbatore and it has been ordered by this Court on 18.9.2009. In the meanwhile, it appears the Judicial Magistrate, No. I, Tiruppur has disposed of the application u/s 125 of Cr.P.C. which was filed by the wife on 9.4.2008 in M.C. No. 34 of 2008 by an ex parte order dated 29.4.2011 as the husband was neither appeared in person nor represented through the counsel. Under such circumstances, the present petition has been filed.
12. Before going into the legal aspects certain factual aspects have to be seen. At the outset let me to examine the legal aspects involved in this case. Undoubtedly, the power to order interim maintenance u/s 125 of Cr.P.C. has been conferred only upon the Judicial Magistrate under the Statute. As per the provisions of Code of Criminal Procedure, the Judicial Magistrate alone is empowered to fix maintenance amount u/s 125 of Cr.P.C. The Subordinate Judge who is incidentally Assistant Sessions Judge does not have such a power of executing the Magisterial Powers conferred under this Code. The Subordinate Judge cannot entertain the application u/s 125 of Cr.P.C. for interim maintenance. Similarly, under Sections 407 and 408 even the Sessions Court or High Court cannot transfer the application filed u/s 125 of Cr.P.C. from the file of Judicial Magistrate to the file of Subordinate Judge in which the Sub Court lacks jurisdiction under the Statute cannot be conferred upon such power.
13. In the above legal back ground move on to the facts of the case. Admittedly, the application in M.C. No. 34 of 2009 was filed by the wife u/s 125 of Cr.P.C. before the Judicial Magistrate No. I, Tiruppur. Similarly, the petition for divorce in H.M.O.P. No. 69 of 2008 was filed by the husband before the Sub Court, Ponneri and thereafter on application by the wife, it was transferred to the Sub Court Tiruppur since the first respondent/wife is residing at Tiruppur. Even though in the pleadings it has been stated that the wife has filed a petition before the Judicial Magistrate No. I, Tiruppur for maintenance, in the final order as I have already pointed out there is no such mention that the maintenance case also has been transferred to the Sub Court, Tiruppur. In my view it cannot also be done by this Court. Obviously, there is no reference in the order to transfer the Maintenance Case also to the Sub Court, Tiruppur which is not permissible in law. There is an apparent error on the face of the order of this Court in Tr.C.M.P. No. 40 of 2009 with regard to the reference about the Maintenance Case as though it was put up before the Sub Court, Tiruppur. But the order passed by this Court in Tr.C.M.P. No. 40 of 2009 was not communicated to the Judicial Magistrate No. I, Tiruppur even for information. Only because of the reason the subsequent transfer petition also has been filed by the husband to transfer the same to the Family Court, Coimbatore and the same has been ordered in the year 2009. No documents have been produced by either the party to show that the learned Judicial Magistrate No. I, Tiruppur was put on notice about the transfer orders.
14. Under such circumstances, the contention of the learned counsel for the petitioner is that the Judicial Magistrate No. I, Tiruppur ought not to have tried the case and he ought to have transmitted the bundle to the Sub Court, Tiruppur, is baselsss.
15. From the perusal of the order it is seen that copy of the order has not been marked to the Judicial Magistrate No. I, Coimbatore and further in the order also there is no such indication directing the Subordinate Judge, Tiruppur to get the bundle from the Judicial Magistrate No. I, Tiruppur to try along with the HMOP. As I have already pointed the last portion of the order indicates only direction to the Sub Judge, Tiruppur to dispose of the case in HMOP alone. The second transfer order also does not indicate that Maintenance Case also has to be transferred to the Family Court, Coimbatore. Therefore, the allegations levelled by the learned counsel for the petitioner against the Sub Judge, Tiruppur and the Judicial Magistrate No. I, Tiruppur are unsustainable and baseless and it has to be summarily rejected. Further, there is no order to transfer Maintenance Case from the Judicial Magistrate No. I, Tiruppur at all.
16. In such circumstances, If the petitioner is aggrieved by the said order of the Judicial Magistrate No. I, Tiruppur, he ought to have challenged the said order in the manner known to law. If at all the petitioner is entitled to any such relief he only ought to have questioned the order of the Judicial Magistrate No. I, Tiruppur separately. In such circumstances, I am of the view that the present petition is not maintainable and is liable to be rejected and is rejected accordingly. Consequently, connected miscellaneous petition is also rejected.
