1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.177 OF 2009 Samadhan s/o Shivdas Bansode, age 27 yrs, Occ. Labour, r/o Azad Chowk, near Madkya Maroti, Parola, Tq. Parola Dist. Jalgaon. Petitioner. v e r s u s 1. Seema w/o Samadhan Bansode, age 23 yrs, Occ. Labour, r/o c/o Shobhabai Shantaram Garud, At Post Dhotre, tq. Bhadgaon, Dist. Jalgaon. 2- Aniket S/o Samadhan Bansode, age minor, under guardianship of his mother i.e respondent no.1 Seema w/o Samadhan Bansode. Respondents. .... Mr. V.B.Patil, Advocate for the petitioner. Shri S.P. Tiwari, Advocate for respondent 1 and 2. .... CORAM: V.R. KINGAONKAR, J. DATE : 27th July, 2009. PER COURT :- 1- Rule. Rule made returnable forthwith and heard finally. 2- Indisputably, the petitioner is the husband of respondent No. 1 and father of the respondent No.2. 2 The respondents filed an application under section 125 of Code of Criminal Procedure (Misc. Cri application No.21/2007. They sought separate maintenance allowance on the ground that they are unable to maintain themselves, have been neglected by the petitioner and that he has got sufficient means to pay such amount. The Learned Magistrate vide order dated 31.12.2007 awarded maintenance allowance of Rs.1,000/- p.m. And Rs.7,000/- p.m. respectively, to the respondents No.1 and 2. The learned magistrate held that both the respondents were eligible to claim separate maintenance allowance from the petitioner. Petitioner asserted that he was ready and willing to maintain respondents. His case before the trial court was that respondent No. 1 (wife) left his house without any substantial reason. He contended that she had made false insuniations against him. He had however, forgiven her when she submitted an undertaking in writing that she will continue to cohabit with him appropriately and abandoned those false allegations. She executed undertaking on a stamp paper dated 19.06.2006. He submitted that he was unable to pay separate 3 maintenance allowance. He earns only Rs.1,500/- p.m.. The respondents however alleged that his income was approximately Rs.7,000/- to Rs.8,000/- p.m. 3. Feeling aggrieved by the order rendered on 31.12.2007, the petitioner preferred criminal revision petition No.31/2008 along with stay petition. The learned Additional Sessions Judge granted conditional stay order. He complied with the conditions. On date of hearing the Advocates of both the sides were found absent and therefore the learned sessions Judge decided the criminal revision application No.31/2008 in absence of the parties and their advocates. 4- Heard learned counsel. 5- Core question involved in this petition is as to whether the learned Sessions Judge properly exercised the revisional jurisdiction under section 397 of the Code of Criminal Procedure. On perusal of the impugned judgment, it is explicit that the learned Sessions Judge did not consider evidence tendered by the parties. He simply observed : 4 “It is well settled that in the revisional jurisdiction the court does not ordinarily go into the aspect of appreciation of evidence.” There after he proceeded to observe that the points formulated by the learned magistrate for determination were proper. He held that no fault could be found in the reasoning of the learned magistrate and the order passed by him. Lastly, he described as to why the provisions of section 125 of the Cr.P.C. Is incorporated in the statute Book. It is amply clear that the learned Sessions Judge did not apply judicial mind to the contentions of the parties which could be gathered from the memo of revision and the judgment rendered by the learned magistrate. 6- True, the revisional Court is not required to re appreciate the evidence. There cannot be duality of opinion that in the exercise of revisional jurisdiction the Court cannot act like an appellate Court. Still, however, it is the duty of the revisional court to consider the evidence and manner in which it has been appreciated by the learned magistrate. For, it is always necessary for the revisional Court to examine 5 whether the evidence on record is properly appreciated or that there is element of perversity of arbitrariness in the manner of appreciation of evidence undertaken by the trial court. How a sessions Judge would otherwise notice any perversity or arbitrariness in the process of appreciation unless he himself would go through the evidence of the parties ? The impugned judgment does not show that the learned Sessions Judge even cursorily perused the oral and documentary evidence adduced by the parties. The learned Sessions Judge did not examine whether the written undertaking given by the respondent No.1 was out come of any undue influence or that it was obtained in order to ensure that she will properly reside with the petitioner. The learned sessions Judge also did not consider the pleadings of the respondents. The recitals of paragraph No.6 of the application filed under section 125 of the Cr.P.c. would show that the petitioner earns Rs.3,000/- to Rs. 4,000/- p.m. by doing work of T.V cable repairing. It is further stated in the pleadings of the respondents that besides such regular work, the petitioner also works as a T.V. Cable repairer at other places and thus 6 his income is about 7,000/- to Rs.8,000/- p.m. As against this, the petitioner pleaded that his income was only Rs.1,500/- p.m. There cannot be two opinion about the possible extremities pleaded by the husband and wife on the score of his earning capacity. It is however necessary for the Court to consider material on record in order to determine reasonable quantum of maintenance allowance. No such exercise was done by the learned Sessions Judge. The impugned Judgment seems to have been rendered by adopting reasoning of standard nature which can be used as part of an revisional order in similar matter. In other words, a particular fact situation and evidence on record is not considered by the learned Sessions Judge to reach the conclusions while deciding the revision application. It is true, no doubt, that the learned Advocates for both sides were absent and the revision petition could be decided even in the absence of the Advocates having regard to section 403 of Criminal Procedure Code. In such an event, the responsibility of the revisional Court is more onerous. Revisional Court is required to consider all the aspects by going through the record which is 7 called for in order to examine the legality and properity of the order of the trial court. This seems to have been overlooked by the revisional Court. 7. For the reasons as stated hereinabove, the impugned order is liable to be interfered with. Hence the petition is partly allowed. The impugned order is quashed. Criminal revision application No.31/2008 is restored to its original position subject to condition that the petitioner would deposit all arrears of maintenance allowance as per the order of interim stay in the revision application within a period of four weeks. The parties are directed to appear before the Revisional Court on 1 st of September, 2009 and if by that time, the arrears are not deposited by the petitioner the revision application may be dismissed by the learned Sessions Judge in default and if such amount has been deposited then the revision application may be heard on merits and may be decided appropriately. (V.R. KINGAONKAR, J.) aaa/177.09 ...