SUNDER DASS Vs. KRISHNA KUMARI

JUDGEMENT

(1.) This is an application for a certificate of fitness for appeal to the Supreme Court from the order dated 8th January 1968 allowing Criminal Revision) No. 9 of 1967, in agreement with the recommendation of the learned Additional Sessions Judge, from the order of the learned Sub Divisional Magistrate, dismissing the application of Smt. Krishna Kumari under Section 488 Cr. P.O., for maintenance for herself and her son. The parties, as is obvious, were married to each other on 17th November 1959, and after marriage, they lived together as husband and wile and a son was born from this marriage on 20th October, 1960. Misunderstanding appears to have arisen between the husband and the wife and the husband apparently stopped supporting her. The wife then initiated proceedings under section 488 Cr. P.C. in the Court of the Sub-Divisional Magistrate, Delhi, who dismissed that application on 28th May 1906. According to the wife's allegations, the respondent and his mother were not satisfied with the dowry brought by the wife, with the result that the hasband started maltreating her. The learned Snb Divisional Magistrate dismissed the application holding that the wife had been leading an adulterous Ufa with one Murli Dhar.

(2.) The matter having been taken to the learned Additional Sessions Judge, went into the record with great care and felt no hesitation in holding that the hasband has chosen to make false allegations of adultery against his wife. Indeed the husband did not even choose to appear before the learned Additional Sessions Judge. The case was thus recommended to this Court for quashing the order of the learned Sub-Divisional Magistrate and allowing to the wile the maintenance at the rate of Rs. 60 per month. In this Court, the only ground on which the recommendation of the learned Additional Sessions Judge was sought to be contested was that the conclusion of th" learned Magistrate is binding on this Court on revision and that however erroneous that conclusion may be, this Court: has no jurisdiction on revision to scrutinise those conclusions. This submission was negatived and it is against this order that certificate of fitness under Article 134 11) (e) is sought. It is argued on behalf of the husband by Shri Mohan Behari Lal that reference by the learned Additional Sessions Judge was incompetent because he was seek ing to interfere with a finding of fact of the learned Sub-Divisional Magistrate and that he did not formulate any question of law for authoritative decision by this Court. In my opinion, this submission is somewhat misconceived. Incases under section 488 Cr. P.O., when the aggrieved party desires to approach this Court on revision as indeed in all criminal cases when an aggrievd party wants to chalienge an order of a Magistrate on revision, the Court of the Sessions Judge has, as a matter of practice, to be approached in the first instance and it that Court agrees with the aggrieved party, then the case is forwarded to this Court for final order on revision with the recommendation of the Court of the Sessions Judge. If the Learned Sessions Judge does not agree to toward the case to this Court, then the aggrieved party can approach this Court for the relief claimed. There is, however, no question of the Sessions Judge formulating a precise question of law for decision by this Court, an I certainly failure to so formulate a question does not vitiate the reference or deprive this Court of its jurisdiction to exercise its revisional power tinder the Code of Criminal Procedure. In so far as the a gument of interference with questions of fact is concerned, it is tiue that the power of revision conferred on this Court under the Code of Criminal Procedure is not to be equated with the power of appeal either under that Code or under the Code o Civil Procedure. Indeed, as has been noticed in the order against which certificate of fitness for appeal to the Supreme Court is sought, the scheme of the Cr. P. C. in regard to the revisional poer of the High Court is in the nature of supervisory jurisdiction intended to secure the correction of patent errors or defects resulting in miscarriage of justice and those errors may arise from misconception of law or irregularity of procedure. This jurisdiction is a kind of paternal or supervisory jurisdiction from the point of view of substantial Justice. It has not been shown by the learned counsel for the husband that this view is incorrect and requires to be examined by the Supreme Court. Certificate of fitness within the contemplation of Article 134 (1) (e) of the Constitution is not to be given as a matter of course, not merely because the decision is stated to be erroneous. On the other hand, it requires optional and special circumstances where substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decisions by the Supreme Court. There should he either some kind of disregard of the form of the legal process or violation of some important principle or otherwise substantial and grave injustice must be made out. I am unable to persuade myself on the present record to conclude that this case satisfies this test.

(3.) As a last resort, it has been argued by Shri Mohan Behari Lal that the question as to what is the quantum of proof required for sustaining a finding of adultery in proceedings under section 4--8, Cr. P.C is a special feature in this case which deserves to be settled by the Supreme Court. Here again, I am unable to agree with the learned counsel and, in my view, this is not a cogent ground for certifying the case to be a fit one for appeal under Article 134 (1) (e).