SANTOSH KUMAR Vs. RAMWATI

JUDGEMENT

(1.) THIS revision petition has been filed at the instance of the husband-petitioner against the order dated 15. 2.2008 whereby the learned Additional Sessions Judge No. 2 Alwar allowed the appeal of the respondent-wife and enhanced the maintenance awarded to the respondent-wife by the learned Additional Chief Judicial Magistrate Alwar under Section 125 Cr. P. C. The Addl. Chief Judicial Magistrate in his order dated 19. 4. 2006 awarded to the respondent wife a sum of Rs. 500/- per month as maintenance from the date of the application dated 4. 1. 2001. Learned Additional District Judge under his order dated 15. 2. 2008 enhanced the amount of maintenance from Rs. 500/- per month to Rs. 1000/- per month.

(2.) I have heard Shri J. R. Tantia, learned counsel for the petitioner and perused the impugned order.

(3.) IN Pilli Venkanna vs. Pilli Nookamma : 1998 Cr. L. J. 1922 again, the Andhra Pradesh High Court while dealing with an argument as to alteration of allowance made by the Court under Section 127 Cr. P. C. would take effect from which date, it was held that alternation of allowance can be made from the date of order and not from the date of application. It was in that context that the Court held that it was not open either to the Magistrate or the revisional Court to enhance the maintenance from the date of filing of the application. Therefore, it would be evidence that neither of the courts held that revisional Court in exercise of its powers conferred under Sections 397, 399 and 400 of the Code of Criminal Procedure, 1973 would have no power or authority to enhance the amount of maintenance awarded under Section 125 Cr. P. C. IN fact, Section 397 Cr. P. C. provides that the High Court or any sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Similarly Section 399 Cr. P. C. defines powers of a Session Judge while considering revision petition against the order of inferior criminal Court and in fact, provides that all such powers are exercisable by the High Court under sub-sections (2), (3), (4) and (5) of Section 401 Cr. P. C. shall, as far as may be, apply to proceedings before the Sessions Judge. Section 400 of the Code provides that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge. When the order granting maintenance to the respondent-wife directed payment of only Rs. 500/- per month and the respondent-wife not being satisfied with the quantum of compensation, preferred a revision petition before the Additional Sessions Judge, it was open to the learned Additional Sessions Judge to consider and decide that application on its merit as if it was dealing with the matter as an original court. It is trite law that the revisional court, if it is satisfied that in the process of examining the correctness, legality or propriety of an order, can not only set-aside such order but may also exercise any of the powers as are conferred on courts of appeal by Sections 386, 389, 390 and 391 Cr. P. C. or any Court of session as are conferred on it by Section 307 of the Code. It may be noted that Section 399 (1) Cr. P. C. which inter-alia provides that a Sessions Judge while exercising the powers of revision, in the case of any proceeding, record of which has been called for any the Sessions Judge, may exercise all or any of the powers which may be exercisable by the High Court under sub-section (1) of Section 401 which provides that High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307. Section 386 of the Code inter-alia provides for the powers of the appellate Court which power includes the power to reverse the order impugned directing re-hearing and retrial, alter the finding maintaining the sentence, with or without altering the finding, altering nature or extent, of the sentence and where appeal for enhancement of sentence, reverse finding of sentence, acquit or discharge the accused or ordered to be retried, or alter the finding of maintenance, sentence or with or without altering the finding, altering nature or extent of sentence so as to enhance or refuse the same. Provisions of Section 386 (2) Cr. P. C. are worded in the context of an appeal preferred against the conviction and sentence or an order of acquittal but nevertheless by virtue of incorporation of sub- Section (1) of Section 401 in sub-section (1) of Section 399 of the Code, which would enable the revisional Court of such powers as are exercisable by the original court. IN other words, Additional Sessions Judge while considering the correctness, legality and propriety of the order passed by the magistrate in the present case could also arrive at the conclusion as to the adequacy or otherwise of the quantum of maintenance.