MAHESH KUMAR Vs. RAJKUMARI

JUDGEMENT

(1.) THE petition under Section 482 of the Code of Criminal Procedure has been moved by Mahesh Kumar against the order dated 20. 6. 90, passed by Second Additional Sessions Judge, Ashok-Nagar, in Criminal Revision No. 7/87, whereby he confirmed the order passed by Shri S. S. Yadav, Judicial Magistrate First Class, Mungawali in proceedings under Section 125 Cr. P. C. dated 13. 12. 1986.

(2.) FACTS briefly narrated are that a petition under Section 125 Cr. P. C. was filed against the present petitioner, alleging that the petitioners were married according to Hindu rites. Out of this wedkock, a male issue was born. The present non-applicant, i. e. Rajkumari was brought by her brother to his village and since then she was living with her parents. She, her brother and father sent messages to the present petitioner to take her back, but he did not turn up. He illegally contracted a second marriage with one Guddibai daughter of Pooran Chand Jain and this fact came to her knowledge some time before the filing of petition under Section 125 Cr. P. C. Her husband did not want to keep her. She, therefore, prayed for maintenance amounting to Rs. 300/for herself and Rs. 100/- for her minor son. There were other allegations also with which we are not concerned and which are not relevant for the disposal of the present petition. The petition was contested on various grounds and the learned Magistrate after taking necessary evidence, hearing the parties allowed the petition by his order dated 13. 12. 86 and awarded a sum of Rs. 200/- per month as maintenance from the date of petition. Feeling aggrieved thereby, a revision petition was preferred by Mahesh Kumar, which was dismissed by order dated 20. 6. 90. Against this order the present petition has been preferred.

(3.) LEARNED Counsel for the respondent raised a preliminary objection that the petition is not maintainable as it amounts to a second revision under the garb of a petition under Section 482 Cr. P. C. , which has been held to be not maintainable in latest pronouncement in case of Dharmapal v. Ramshree [air 1993 SC 1361=i (1993) CCR 47 (SC)]. Learned Counsel for the petitioner contended that in the present case, the order passed by the learned Magistrate was not in accordance with law, inasmuch as he pointed out that maintenance is directed to be paid from the date of application. This order could not be passed without assigning any reason. In support of his contention he relied upon Saroj Bai (Smt.) v. Jai Kumar fain (1994 JLJ 725) a Full Bench decision of this Court. It has been held that as the Magistrate has not given any reason the order is illegal. The learned Counsel, therefore, urged that this Court may exercise its inherent powers under Section 482 Cr. P. C. and pass such order as is necessary in the ends of justice. There cannot be two opinions that second revision is barred in view of Section 397 (3) Cr. P. C. The Hon'ble Supreme Court in the aforesaid Dharmapal's case has specifically ruled that: Section 397 (3) bars a second revision application by the same party. It is well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. In this view of the matter, no interference is called for under inherent powers.