Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 9188 of 2005 Petitioner :- Kuldeep Respondent :- State Of U.P. And Another Counsel for Petitioner :- R.K. Sharma,Rakesh Tripathi Counsel for Respondent :- Govt. Advocate,B.C. Mishra,D.S. Tiwari,Dharmendra Singhal,Shashwat Shukla
Hon'ble Aniruddha Singh,J.
None is present on behalf of the petitioner even in the revised call. Learned A.G.A is present.
This writ petition has been preferred by Kuldeep against Smt.Varuna, respondent no.2 and State of U.P., respondent no.1, challenging the order dated 10.08.2004 passed by Additional Session Judge, Court No.1, District Ghaziabad in Criminal Revision No.76 of 2003.
From perusal of order dated 5.9.2005, it transpires that petitioner was directed to pay maintenance allowance @ Rs.1500/- per month from the date of application i.e. dated 5.12.2001 and to deposit the money with the court below within three weeks and that shall be released in favour of Smt.Varuna respondent no.2 forthwith.
From perusal of the order it transpires that no compliance report has been submitted by the petitioner before this Court. It is not in compliance of the order dated 5.9.2005 the said money has been deposited or not.
From perusal of record it also transpires that an application under section 125 Cr.P.C. was moved by Smt.Varuna, w/o Kuldeep, opposite party no.1 and that was decided vide order dated 20.01.2003 and Rs.250/- per month in favour of the applicant and Rs.150/- per month in favour of his daughter Km.Garima was awarded from the date of application i.e. 5.12.2001. Against that order Criminal Revision No.43 of 2003 was filed by Varuna wife of Kuldeep and Criminal Revision No.76 of 2003 was filed by husband Kuldeep. Both the revisions were decided by order dated 10.08.2004. Criminal Revision No.76 of 2003 of husband-Kuldeep was dismissed and Criminal Revision No.43 of 2003 filed by Varuna, w/o Kuldeep was allowed and maintenance was enhanced in favour of applicant Rs.2,000/- and in favour of Garima, daughter of the applicant Rs.500/- per month, hence, this revision.
From perusal of record it transpires that marriage between the parties was admitted according to Section 102 of the Evidence Act. Daughter was born from the wedlock was presumed. Marriage was solemnized 6.12.1996. Daughter Garima was born and after that Kuldeep misbehaved with his wife, hence, application was moved alleging that Kuldeep have hundred bigha land, tractor, Maruti Car and 10 buffaloes.
From the side of applicant, P.W.-1 was examined and from the side of opposite party, P.W.-2 was examined. D.W.2 Sushil Kumar.
After considering the evidence on record the impugned order was passed.
The amount awarded in favour of the complainant and her daughter and considering the income of Kuldeep, is not excessive.
In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.
In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.
28. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:
"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
29. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:
"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."
On the point of fact, both the courts below have given concurrent finding of facts and the view taken by both the courts below are plausible view, hence, no interference is called for.
This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present writ petition lacks merit and is liable to be dismissed. Hence, dismissed.
Interim order, if any, stands discharged. Certify this judgment to the lower court immediately.
Order Date :- 5.9.2018 SKD