GOVINDA REDDY Vs. VARALAKSHMAMMA

JUDGEMENT

(1.) ORDER: This revision is filed by the husband-petitioner aggneved by the remand order passed by the Court of Session, Anantapur in the proceedings under Sec. 125 of Cr.P.C.

(2.) The wife-respondent No.1 had instituted M.C.No.4 of 1989 on the file of the Munsiff Magistrate Kalyandurg claiming maintenance at the rate of Rs. 500/- per month. The petitioner had resisted the same on the ground that the 1st respondent was living apart without just cause. There is no other allegation excepting this. The case set-up by the 1st respondent was accepted by the Court of Magistrate ordering maintenance at the rate of Rs.200/- per month. Aggrieved by the quantum, the wife filed a revision and the petitioner had also filed a revision aggrieved by the order mulcting him with the liability of maintenance on the ground that when he was ready to maintain her, it was her fault in staying apart. Both the revisions were heard together by the Court of Session, Anantapur and remanded the matter to the Court of Magistrate for fresh enquiry.

(3.) Mr. K. V. Ramana Rao, the learned counsel for the petitioner, submits that the Court of Session exercising revisional jurisdiction under Section 397 Cr.P.C. was not entitled to remand the matter. He cites Section 391 of Cr.P.C. and also a Judgment of Kerala High Court rendered in Kesavan Nair v. State of Kerala (1) 1979 Kerala Law Times 635 in support of his contention. The said judgment has been delivered in the facts of that case and revolving upon the power exercised by the Court of Session and it cannot be read as laying down the law that power of remand was not available to the Court of Session. The learned counsel for the petitioner then submits that the power of remand is available only to an appellate court and not a revisional court. He submits that as provided under section 391 Cr.P.C. where appellate court is expressly empowered to take additional evidence or call for a finding from the Magistrate, no such power is expressly provided under Section 397 of Cr.P.C., and unless such power is expressly provided, the power of remand cannot be exercised. I do not concur with this argument. An order passed under Section 125 Cr.P.C. is not appealable. It is only revisable under Section 397 Cr.P.C Section 397 of Cr.P.C. provides the machinery for calling the records from the lower court, while Section 399 thereof furnishes the power,by which it can be disposed of. Under Section 399 Cr,P.C, the Sessions Judge can exercise all or any of the powers which may be exercised by the High Court under Section 401 (1) of Cr.P.C. Under Section 401 (1) Cr.P.C., the High Court can exercise all or any of the powers conferred on Court of Appeal under Section 391 Cr.P.C., apart from other provisions - under Sections 307,386,389 and 390 of Cr.P.C. If that be so, the Sessions Judge exercising his revisional jurisdiction under Section 397 of Cr.P.C. is entitled to exercise all the powers conferred on a Court hearing the appeal under Sec.391 of Cr.P.C. and as a necessary corollary, can exercise the power of remand also. Even in the absence of such a provision, the powers of a Sessions Judge as a revisional court cannot be read as disabling him from ordering the remand, as such a power is implicit while exercising the revisional jurisdiction and more so when the appeal is not provided. In the circumstances, I hold that the Court of Session was having jurisdiction while exercising powers under Section 397 Cr.P.C., to set aside the order of the lower court and to remand for reenquiry by the Magistrate.