M. Wahajuddin, J.@mdashThis is an application by the learned Counsel of opposite party No. 1 and father of opposite party No. 2 made u/s 482 Code of Criminal Procedure praying that the order dated 13-11-1979 of the Sub Divisional Magistrate Ghatampur (Annexures "12") and order dated 17-2-1981 of the X Additional Sessions Judge Kanpur (Annexures "13") upholding the order of the Sub Divisional Magistrate awarding a maintenance of Rs. 100/- per month to opposite party No. 1 and Rs. 50/- per month to opposite party No. 2 may be quashed.
2. The aforesaid order have been assailed on the number of grounds. Before considering them for proper appreciation of the arguments urged in support of the grounds pressed before me it may be desirable to lay down certain salient facts. Opposite party No. 1 brought an application u/s 482 Code of Criminal Procedure (old) on 16-11-1973. It was dismissed in default on 7-6-1976. A revision was preferred against such order on 10-7-1976 and allowed on 31-3-1977 and the case was again remanded to the subordinate court. Thereafter the Magistrate passed the impugned order dated 13-11-1979 allowing the aforesaid sums as maintenance, which order was upheld in revision by the judgment dated 27-2--1981.
3. The first two grounds, which have been urged and are rather interlinked are that the order of Court of revision dated 31-3-1977 amounted to an order of restoration of proceedings while Code of Criminal Procedure does not contain any provision for such restoration and though such order was not challenged directly, it can be challenged collaterally later in the subsequent proceedings. It is submitted that the order was ab initio void and all proceedings in pursuance of such order passed in the revision would be a nullity. In support of such arguments reliance has been placed upon the case of Nawab Khan Abbas Khan v. State of Gujrat, AIR 1974 SC 1471. It has been held in that case that an order, which is void may be directly and collaterally challenged in legal proceedings. The further observation made is, when a competent court holds such official act or order invalid or sets it aside, it operates from nativity i. e., the impugned act or order was never valid. In that case Nawab Khan was prosecuted u/s 142 of Bombay Police Act, for contravention of Externment order u/s 56 of that Act. He was acquitted by the trial Court, but convicted by the High Court and the matter then went to the Supreme Court. It would appear that during the pendency of the criminal trial the Externment Order itself was quashed under Article 226 of the Constitution of India. Its implication was considered and the Supreme Court ultimately came to the conclusion that the Externment Order was void ab initio and not simply voidable and it was never valid and, consequently in the criminal proceedings its effect will be operative and the matter could be challenged directly as well as collaterally. It is settled that it is the facts of the individual case which have to be weighed. The Sessions Judge, who disposed of the earlier revision was vested with such jurisdiction and the revision lay before him u/s 397(2) Code of Criminal Procedure. It is, therefore not a case where any jurisdiction was lacking ab initio.
4. The submission is that the order lacks jurisdiction. For examining this argument it may be desirable to quote Section 397, Code of Criminal Procedure. The relevant portion of Section 397(1) runs as follows:
397 (1). The High Court or and Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any findings, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court...
The Sessions Judge disposing of the earlier revisions had full jurisdiction to examine the record for purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed. The revision was directed against the final order dismissing the application in absence of the applicant in proceedings u/s 488, Code of Criminal Procedure. It would appear that the evidence had been concluded and the case was fixed for arguments. When that was the position the absence of the applicant in that proceeding (present opposite party) could not lead to the dismissal, and the Sessions Judge under the provisions of Section 397(1) Code of Criminal Procedure was fully competent and empowered to correct the illegality and impropriety of the order passed by setting aside and remanding the case for disposal after hearing arguments. This is that he has done.
5. The learned Counsel for the applicant tried to draw a distinction between the dismissal in default, and dismissal for want of prosecution and urged that in case of dismissal for want of prosecution the case could not be remanded. I may, however, observe that these are just fine distinction and when any proceeding is dismissed in the absence of any party, without going into the merits, it would tantamount to dismissal in default, whatever other name may also be given.
6. It was argued that there are no provisions for restoration in the Code of Criminal Procedure. It is not that the same Court, i. e., the Magistrate has restored the case. It is the superior court which has, after setting aside the order of the Magistrate which could not have been passed, remanded it for disposal oil mertis and that order cannot be challenged. I, therefore, held that the first two grounds urged have no force.
7. The next ground urged is that the proceedings would be under the new Code, because by the time the case was remanded new Code of Criminal Procedure had come into force. Reliance in support of such submission is placed upon the case of
We are therefore, of the view that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding certain provisions concerning child who attained the age of majority.
8. In fact this ruling itself is an authority that to achieve harmony Section 488 old Code of Criminal Procedure and 125 new Code of Criminal Procedure will be taken as corresponding provisions.
9. Reliance has also been placed upon the case of
10. The other side has relied upon the case of Mahboob Raza Khan v. Mohammad Shah Khan, 1979 U. P. Criminal Law Reports 50. It was held in that case that if a pending matter is decided under the provisions of the old Code, the same provisions would be applied at a subsequent stage. I may refer to Section 484(2) which runs as follows:-
484 (2). Notwithstanding such appeal--
(a) If, immediately before the date on which this code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code) as if this Code had not come into force:
Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code:
(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdiction defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrate, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code:
(c) any sanction accorded or consent given under the Old Code in pursuance of which any proceeding was commenced under the Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent:
(d) the provisions of the old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution.
11. The law is well settled that efforts should always be made to reconcile the various pronouncements which may have been made. When any revision is filed under the new Code and disposed of as such, its validity cannot be challenged on the authority of the aforesaid Supreme Court case of P. Philip (Supra). It would appear by the date the initial proceedings were dismissed new Code of Criminal Procedure had already come into force. So revision could be entertained only under the new Code of Criminal Procedure. Once the order was set aside and a remand was made, the old proceedings before Magistrate revived. That was a proceeding under the old Code of Criminal Procedure. When that is the position the application was to be treated from the angle of its requirement as one under the old Code of Criminal Procedure and the proof that would be required will also to be according to the provisions of the old Code of Criminal Procedure. Rights of the parties would not be affected whatever be the position of the revision. The initial proceedings before the Magistrate would, therefore, be governed by the old Code of Criminal Procedure and notwithstanding that the remand was of a later cate when the new Code of Criminal Procedure had come into force. I may also observe that otherwise also it would not make any material difference.
12. It is next urged that the husband has not the means. The concurrent finding of the courts below is that the husband has means. Firstly, this Court can not enter into questions of facts. Secondly as has been rightly observed by the revisional court, the applicant had not taken any plea that he has separated from his father. From a perusal of his statement which has been annexed it would appear that the property is of the time of grand father of the applicant. It would also appear from the statement of the applicant himself that he has atleast two catties which give milk i.e. buffalo and goat. He also makes some earning as per his own statement by grazing cattle of others. He is a man of 30 years of age and can very well earn by working hard. Reliance is placed upon the case of Chhedi Lal v. Bhanumati 1973 ACC 158 in which it was held that means of the father of the husband is irrelevant. Every case has to depend upon its own facts. In the present case, as observed earlier, the presumption will be that the holding is ancestral one in the name of father, when other brothers of the father are said to have got shares separated by mutual settlements. Reliance was also placed upon the case of
13. It was next argued that the wife should have appeared for a compromise. Reliance was placed upon the case of Gur Prasad v. Smt. Ram Dulari 1979 ACR 112. On a perusal of the husband''s statement I find that he has attributed unchastify and immorality to the wife and when that is the position, her claim cannot be defeated on such pleas.
14. In the end I may observe that inherent powers are to be exercised very sparingly. The case of
15. It was submitted before me that the wife has acquired some property and thereby she has now a means to maintain herself. In the circumstances, while dismissing this application, I would observe that the applicant is at liberty to move any application u/s 127, Code of Criminal Procedure before the court concerned, if there are any grounds for the same. The application u/s 482, Code of Criminal Procedure is dismissed.
