N Criminal Appeal No 117 of 1978
Appeal from the Judgment and order dt
5 12 77 of the Punjab  Haryana High Court in Criminal Misc
Petition No 3892 M of 1976
R section Narula M section Marwah and D section Narula for the appellant
section K Mehta K R Nagaraja and P N Puri for the respondents
The Judgment of the Court was delivered by CHINNAPPA REDDY J
Jagir Singh the appellant in this appeal by special leave was married to Kirpal Kaur in 1951
Husband and wife became estranged in 1954 since when they have been living separately
Ranbir Singh the issue of the marriage was born in 1954
Jagir Singh married again and it is said that he has a son and a daughter by the second wife
On 25th May 1971 Kirpal Kaur and Ranbir singh filed an application for maintenance under Section 488 of the Criminal Procedure Code 1898
One of the defences raised by the appellant to that application was that Ranbir Singh was a major and therefore not entitled to claim maintenance under Section 488
The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and therefore the question whether he was a major or a minor was immaterial
On 19th May 1973 he made an order awarding maintenance at the rate of Rs 200 per month to Kirpal Kaur and Rs 75 per month to Ranbir Singh Jagir Singh filed a revision petition before the Sessions Judge
By consent of the parties the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs 150 per month and that the award of Rs 75 per month to the son should be confirmed
The reference was accepted by the High Court
The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code 1974 was enacted in its place
The new Code came into force on 1st April 1974
On 3rd May 1974 the appellant made an application before the Magistrate purporting to be under Section 127 of the new Code for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority 285 and did not suffer from any infirmity or abnormality which prevented A him from maintaining himself
It was claimed on behalf of the appellant that under the new Code it was not permissible to award maintenance or enforce an order to maintenance in favour of a child who had attained majority and who was not unable to maintain itself by reason of any physical or mental abnormality or injury
On 3rd June 1974 the son filed a counter admitting that he had attained majority but claiming that he was still a student unable to maintain himself
The son claimed that the order in his favour had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code
On 9th May 1975 the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code 1974 and cancelled the order for maintenance made earlier in favour of the son
Ranbir Singh the son filed a Revision Application before the Sessions Judge
It was dismissed on 12th March 1976
The learned Sessions Judge held that the order made under Section 488 of the old Code could survive under Section 4842 of the new Code if there was a corresponding provision under the new Code which enabled the award of maintenance to a major child
Since there was no such corresponding provision the order under Section 477 in favour of Ranbir Singh ceased to be in force
Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December 1977
The High Court held that notwithstanding the change in the law which disentitled a major child from claiming maintenance Section 125 of the new Code did correspond to Section 488 of the old Code
Therefore the order for maintenance in favour of Ranbir Singh was saved by Section 4842 of the Code of 1974
1974 Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution
Shri R section Narula learned Counsel for the appellant contended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 3973 of the Code of Criminal Procedure 1974
He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge
Shri Narula further contended that under Section 125 of the Criminal Procedure Code 1974 a major son who did not suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was not entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was not saved either by Section 4842 of the Code of Criminal Procedure 1974 or Sections 6 and 24 286 of the General Clauses Act
Shri section K Mehta learned Counsel for the respondent submitted that the revision application before the High Court could be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him
In any case he argued that the Revision Application could be treated as one under Article 227 of the Constitution
He contended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 continued to be in force and that it could not be cancelled merely because Section 125 did not provide for the award of maintenance to a major son who did not suffer from any abnormality or injury
The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 3973 of the Criminal Procedure Code 1974
Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction The District Magistrate who also had revisional jurisdiction under Section 435 of the Code of Criminal Procedure 1898 is now divested of such jurisdiction
In addition there are in the 1974 Code two important change Both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice
The first change is that introduced by Section 3972 which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal enquiry trial or other proceeding
The second is that introduced by Section 3973 which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge and further application by the same person shall be entertained by the other of them
We are concerned with this provision in this appeal
The object of Section 3973 is clear
It is to prevent a multiple exercise of revisional powers and to secure early finality to orders
Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority
The language of Section 3973 is clear and peremptory and it does not admit of any other interpretation
We may also mention here that even under Section 435 of the previous Code of Criminal Procedure while the Sessions Judge and the District Magistrate had concurrent jurisdiction like present Section 3973 previous Section 4354 provides that if an application under the Section had been made either to the Sessions 287 Judge or District Magistrate no further application shall be entertained by the other of them
In order to cross the hurdle imposed by Section 3973 it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead or an one directed against the order of the Magistrate We do not think that it is permissible to do so
What may not be done directly cannot be allowed to be done indirectly that would be an evasion of the statute
It is a well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance per Abbott CJ in Fox vs Bishop of Chester1 To carry out effectually the object of a Statute it must be construed as to defeat all attempts to do or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined Maxwell 11th edition page 109
When the Sessions Judge refused to interfere with the order of the Magistrate the High Court s jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge
The bar of Section 3973 was therefore effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge s order
If the revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code could the order of the High Court be sustained under Article 227 of the Constitution as now suggested by the respondent  In the first place the High Court did not purport to exercise its power of superintendence under Article 227
The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such source of power when the High Court itself did not in terms purport to exercise any such discretionary power
In the second place the power of judicial superintendence under Article 227 could only be exercised sparingly to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors
Where the statute banned the exercise of revisional powers by the High Court it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of Superintendence was not meant to circumvent statutory law
In the third place it was doubtful if the High Court could exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed
By the 42nd Amendment Act clause 5 was added in Article 227 of the Constitution and it says Nothing in this article shall 1 1824 2 B  635
288 be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision
Clause 5 of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub Section 2 of Section 224 of the Government of India Act 1935 which it was held conferred powers of administrative superintendence only and not the power of Judicial Superintendence
In the present case the revision application was however filed before the passing of the 42nd Amendment Act and it was therefore argued by the learned Counsel for the respondent that the High Court could exercise the power of superintendence possessed by it before the 42nd Amendment
We have serious doubts
Article 227 before the 42nd Amendment gave no right to any party
An application invoking the High Court s power of Superintendence did not create any vested right in the suitor
There could therefore be no question of any vested right being taken away or not being taken away by the amendment
It was just a question whether the High Court possessed the power of Superintendence on the date of the High Court s order
There is no dispute that it did not
We do not wish to pursue the matter further as in our view there was no case to warrant interference under Article 227 of the Constitution
In view of the foregoing discussion the revision application to the High Court must be held to be incompetent
In that view it is unnecessary to go into the question whether the original order under Section 488 Criminal Procedure Code 1898 in favour of the respondent could be cancelled under Section 127 of the Criminal Procedure Code 1974 But the lower Courts went into the question at some length and detailed submissions were made before us
We will express our opinion briefly
Section 4841 of the 1974 Code repeals the Code of Criminal Procedure 1898
Section 4842 a provides for the continuance and disposal of pending cases in accordance with the provisions of the old Code
Section 4842b provides that all notifications published proclamations issued powers conferred forms prescribed local jurisdictions defined sentences passed and orders rules and appointments made under the old Code and which are in force immediately before the commencement  of the new Code shall be deemed respectively to have been published issued conferred prescribed defined passed or made under the corresponding provisions of the new Code
In the present case the order of the Magistrate under Section 488 of the old Code awarding maintenance to the respondent was made on 19th May 1973
The new Code came into force on 1st April 1974
Therefore the order was in force immediately before the commencement of the new Code
289 It must therefore be deemed to have been made under the corresponding provision of the new Code
The question therefore is whether there is any provision of the new Code corresponding to the provision of the old Code under which maintenance was awarded to the respondent
As we said the respondent was awarded maintenance under Section 488 of the Criminal Procedure Code 1898
Under Section 488 Criminal Procedure Code 1898 a person having sufficient means and neglecting or refusing to maintain his wife or his legitimate or illegitimate child unable to maintain itself could be ordered to make a monthly allowance for the maintenance of his wife or such child
The word child used in Section 488 led to some controversy whether a person could be ordered to pay maintenance to a child who had attained majority but who was unable to maintain itself
In Nanak Chand vs Chandra Kishore Agarwal  Ors
1 the Supreme Court held that the word child  in Section 488 did not mean a minor son or daughter and that the real limitation was contained in the expression unable to maintain itself
Irrespective of whether a son or daughter was a major or minor a father was bound to maintain the son or daughter if such son or daughter was unable to maintain himself or herself
Section 125 of the 1974 Code makes a slight departure
Under this provision child who has attained majority is not entitled to be awarded maintenance unless such child is unable to maintain itself by reason of any physical or mental abnormality or injury
According to Shri R section Narula in view of the change it cannot be said that the new Code contains ally provision corresponding to the provision in the old Code which authorised the award of maintenance to a child who had attained majority and who was unable to maintain itself even if such child did not suffer from any physical or mental abnormality or injury
Therefore according to Shri Narula Section 4842 b does not save all order awarding maintenance in favour of a child who has attained majority and who does not suffer from any physical or mental abnormality or injury
It is difficult to agree with the submission of Shri Narula
To accept the submission would be to give the expression corresponding provision the meaning identical provision
Whenever an Act is repealed and re enacted there are bound to be changes and modifications
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a corresponding provision would be to practically mullify the effect of a Repeal and Savings provision like Section 4842 b of the new Code
In the Shorter oxford English Dictionary Third Edition Vol
I the word correspond  is said to mean  1 to answer to something else in the way H 1 Al
R 290 of fitness to agree with be conformable to be congruous or in harmony with
2 To answer to in character or function to be similar to 
In Butterworths Words and Phrases Legally defined  Second Edition Vol 1 it is said  to correspond  does not usually or properly mean to be identical with  but to harmonise with  or to be suitable to   and reference is made to Sackville West vs Holmesdale Viscount 1
We are therefore of the view that Section 125 of the new Code corresponds to Section 488 of the old Code notwithstanding the fact that under the new Code a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father
We also note that there are no words in Section 4842 b limiting its application to orders made and sentences passed which are not inconsistent with the provisions of the new Code
There are no such limiting words as may be found as for example in Section 24 of the General Clauses Act which limits its application to an order rule etc so far as it is not inconsistent with the provisions re enacted
This does not mean that statutory instruments made under the old Code and which are inconsistent with the provisions of the new Code continue to be effective
All that Section 4842 b says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code
Their validity will have to be tested like any other statutory instruments made under the provisions of the new Code and they will have to answer the test whether they are consistent with the provisions of the new Code
But in the case of Judicial orders made and sentences passed such orders and sentences which have attained finality and which have created rights in parties do not have to answer the test of being consistent with the provisions of the new Code
We therefore hold that the order for maintenance made in favour of the respondent must be deemed to be an order made under Section 125 of the new Code and that it does not automatically cease to be effective on the coming into force of the new Code
The High Court arrived at this conclusion and thought that it was sufficient to hold in favour of the respondent and to allow the Revision Application
We do not think that the High Court was right in stopping there
The High Court should have further considered the question whether the order for maintenance which was deemed to be an order under Section 125 of the new Code could not be cancelled under the provisions of Section 127 of the new Code
Once the order under Section 488 is deemed to be an order under Section 125 of the new Code it must be so deemed for all purposes including the application of Section 127 of the new Code
Section 127 provides for consequential orders upon proof of a change in the circumstance of any person 1 1878 LR 4 l 543
291 receiving under Section 125 a monthly allowance or ordered under the A same Section to pay a monthly allowance to his wife child father or mother as the case may be
The admitted attainment of majority of the respondent and the change of the law were surely circumstances which entitled the appellant to have the order in favour of the respondent cancelled
We accordingly allow the appeal and set aside the judgment of the High Court
B MR Appeal allowed


Summary:
Ranbir Singh is Jagir Singh s son from his separated first wife
Ill 1971 he and his mother applied for maintenance under section 488 of CrPC 1898
Although Ranbir Singh was a major maintenance was awarded to him on the ground that he was a student unable to maintain himself
In April 1974 the new Cr
PC came into force and under section 127 jagir Singh applied for cancellation of the maintenance order on the ground that the major son WAS not prevented from maintaining himself through any infirmity or abnormality and is not entitled to maintenance under the new code
The respondent contended that the maintenance order had been validly passed under the old Code and continued to remain in force notwithstanding the enactment of the new Code but the Magistrate cancelled the maintenance order Ranbir Singh s Revision Application was dismissed by the Sessions Court on the ground that the order made under section 488 of the CrPC 1898 would not survive under section 4842 of the Cr
PC 1974 due to the absence of a corresponding provision under the new Code enabling his maintenance
He then applied to the High Court for a Revision
The High Court allowed the Revision holding that 9 125 of the Cr
PC 1974 did correspond with section 488 of the Cr
PC 1898
The appellant contended that Ranbir Singh s Revision application to the High Court was barred by section 3973 CrPC 1974 and was incompetent and that his right to invoke revisional jurisdiction of a superior court became exhausted when he moved the Sessions Court in Revision
He further contended that the maintenance order was not saved either by section 4842 Cr
PG 1974 or section 6 and 24 of the General Clauses Act
The respondent submitted that his Revision application before the High Court could be treated and maintained as one directed against the Sessions Judge s order rejecting his Revision application or It could be treated as one under article 227 of the Constitution
Allowing the appeal the Court
 HELD 1 The power under Act
227 is discretionary
The power of judicial superintendence under it could only be exercised sparingly to keep subordinate courts and Tribunals within the bounds of their authority and not to collect mere errors
Where the statute banned the exercise of revisional 283 powers by the High Court it would require very exceptional circumstances to A warrant interference under article 227 since the power of superintendence was not meant to circumvent statutory law
By the 42nd
Amendment Act clause 5 was added in article 227 which is a verbatim reproduction of section 2242 of the Government of India Act 1935 conferring powers of administrative superintendence only and not the power of judicial superintendence
287F H 288A 2 In the Cr
Of 1974 the District Magistrate is divested of his revisional jurisdiction over inferior criminal courts
In addition there are two important changes apparently designed to avoid delay and to secure prompt justice
The first change is introduced by section 3972 which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal enquiry trial or other proceeding
The second change is introduced by section 397 3 under which any person aggrieved by an order of an inferior criminal court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority
The object is to prevent a multiple exercise of revisional powers and to secure early finality to orders
286C F For vs Bishop of Chestor   Maxwell 11th Edn page 109 applied
3 Whenever an Act is repealed and re enacted there are bound to be changes and modifications
To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is not a corresponding provision would be to practically nullify the effect of a Repeal and Savings provision like section 484 2 b of the new Code
To correspond does not usually or properly mean to be identical with but to harmonise with or to be suitable to
There are no words in section 484 2 b limiting its application to orders made and sentences passed which are not inconsistent with the provisions of the new Code
All that section 4842b says is that such statutory instruments shall be deemed to be made under the corresponding provisions of the new Code
Their validity will have to be tested like any other statutory instrument made under the provisions of the new Code
There validity will have to be tested like any other statutory made under the provisions of the with the provisions of the new Code
and they will have to answer the test whether they are inconsistent with the provisions of the new Code
But in ease of judicial orders made and sentences passed such orders and sentences which have attained finality and which have created rights in parties do not have to answer the test of being consistent with the provisions of the new Code
289F H 290B E Butterworth s Words and Phrases legally defined2nd Edn Vol
I Shorter oxford English Dictionary 3rd Edn
I Sackville West vs Holmsdale Viscount 1870 LR  applied
4 Section 125 of the new Code corresponds to section 488 of the CrPC 1898 notwithstanding the fact that under the CrPC Of 1974 a child who has attained majority and who does not suffer from any infirmity is not entitled to be maintained by the father
Once an order under section  is deemed to be an order under section 125 of the Cr
PC 1974 it must be to deemed for all purposes including the application of section 127 of the new Code
290B G 20 817 SCI78 284 Nanak Chand vs Chandra Kishore Aggarwal  Ors   referred to