This petition is filed under section 482 of the Code of Criminal Procedure (for short 'Cr.P.C) against an order dated 24.6.2013 in Crl.R.P.No.98/2012 of the Court of the Sessions Judge, Ernakulam arising from order dated 05.05.2012 in M.C.No.110/2011 of the Court of the Judicial First Class Magistrate-II, Kochi. The petitioner herein was the revision petitioner and the second respondent herein was the respondent therein. The respondent herein filed M.C.No.110/2011 under section 3 of the Muslim Women (Protection of Rights and Divorce) Act, 1986 (fort short 'the Act'). The marriage of the petitioner and the respondent herein was conducted on 18.4.2010 as per the muslim rites and ceremonies and it is a common case that the petitioner pronounced 'Thalaq' and thereby, divorce was effected on 25.6.2011. The respondent moved the said miscellaneous case contending that though an agreement was entered on 25.5.2011 to effect divorce before the S.I.of police Changanassery and 'Iddat' was performed after that period the amount to be paid towards the reasonable and fair provision for maintenance was not paid within the period of observation and no such amount was paid even before the divorce. The petitioner herein resisted the claims and contentions of the respondent herein in the miscellaneous case based on Ext.D1 agreement and the consequential payment of some amounts in terms of the said agreement. The contention of the petitioner herein made based on Ext.D1 agreement was rejected by the learned magistrate and it was found that the petitioner is liable to pay an amount of Rs.5,000/- each for three months of the 'iddat' period and an amount of Rs. 3,00,000/- as reasonable and fair provision for maintenance. It is that order which was taken up in revision by the petitioner. Annexure A4 is the order passed by the revisional court in Crl.R.P.No.98/2012 filed by the petitioner herein against Annexure A3 order. It would reveal that the revision petitioner and his counsel were absent in court in spite of the fact that the case was finally posted to 24.6.2013 for hearing. The court formed the opinion that the revision petitioner was not interested in prosecuting the Crl.R.P and dismissed the revision petition for non prosecution. The captioned miscellaneous case has been filed on being aggrieved by Annexure A4 order. 2. I have heard the learned counsel appearing for the petitioner, the learned counsel for the second respondent as also the learned Public Prosecutor.
3. The core contention of the petitioner is that having admitted the revision petition and call for lower court records the revisional court ought to have dismissed the revision petition for non prosecution. It is contended that despite the absence of the parties and his counsel the court ought to have examined the records and taken a decision on merits on the revision petition. To buttress the said point the petitioner relied on a decision of this Court in Varghese v. Devasia & others reported in 1981 KLT 541. In the said decision referring to sections 397 and 398 of the Cr.P.C. this Court held that the power of revision is a power to call for and examine the records of the proceedings of an inferior court and therefore when once the Sessions Judge decided to call for the records of any such proceedings for the purpose of examining the same with a view to satisfy himself regarding the correctness, legality or propriety or irregularity the Sessions Judge is having bounden duty to examine the records. It is further held that such an examination of the records for the said purpose could be effected without insisting the presence of the parties. Though as a matter of course courts of revision affording an opportunity of being heard to the parties or through the counsel it is held that as a matter of right the party cannot claim a right of being heard. In short, it is held that this Court is having a duty to examine the records when once it calls for the records for examination. In a proceedings under section 482 Cr.P.C. undoubtedly ends of justice is the paramount consideration and therefore to secure the ends of justice and this Court has to invoke the inherent jurisdiction. It is evident from the impugned order that the revisional court passed Annexure A4 order solely on account of the absence of the party as also his counsel on the appointed date. It is true that, the Court posted the matter finally for hearing itself would suggest that prior to the relevant date the matter must have been posted for hearing. As per the order which is sought to be revised by filing the said revision petition the petitioner was directed to pay an amount of Rs.3,15,000/- to the respondent. As noticed hereinbefore, the contention of the petitioner is that in the light of Ext.D1 settlement he is not liable to pay Rs.3,00,000/- though he is having the liability to pay the amount in tune with the provisions under section 3(1)(a) of the Act during the 'iddat' period cannot be disputed and I am of the view that it is only apposite to afford one last opportunity to the petitioner to challenge the order on merits in the revision petition. Obviously, it is a case wherein the revisional court has already taken a decision to call for and examine the record of the proceedings in M.C.No.110/2011. In the said circumstances, Annexure A4 order dismissing the revision petition for default invites interference. In the result, the order passed by the learned Sessions Judge is set aside. The matter is sent back to the files of the Sessions Judge, Ernakulam for disposal of the revision petition afresh after examining the evidence on record and in accordance with law, subject to the condition that the petitioner shall deposit an amount of Rs.75,000/- before the Judicial First Class Magistrate Court-II, Kochi within a period of one month from the date of receipt of a copy of this order. This petition is accordingly allowed as above.
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C.T.RAVIKUMAR,JUDGE.
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