BANS GOPAL Vs. SARJOO DEVI

JUDGEMENT

(1.) This is an application by the learned Counsel of opposite party No. 1 and father of opposite party No. 2 made under Sec. 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 under Sec. 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/s. 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 under Sec. 142 of Bombay Police Act, for contravention of Externment order under Sec. 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 under Sec. 397(2) Code of Criminal Procedure. It is, therefore not a case where any jurisdiction was lacking ab initio.