1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR Anil Solanki V/s. Smt. Ila Solanki & Anr. S.B. CRIMINAL MISC. PETITION No.1553/09 Date of Judgment :: October 15th, 2009 HON'BLE MR.JUSTICE R.S. CHAUHAN Reportable Mr. R.K. Daga for the petitioner. Mrs. Alka Bhatnagar, PP for the State. Mr. Kamlakar Sharma for the respondent. The petitioner has challenged the order dated 04.04.2009 passed by the Additional Civil Judge (Jr. Division) No.15 Jaipur City, Jaipur whereby the leaned Magistrate had directed the recovery of the maintenance amount payable to non-petitioner No.1, Smt. Ila Solanki, under the Protection of Women against Domestic Violence Act, 2005 ('the Act', for short) in an application moved under Section 125 Cr.P.C. The petitioner has also challenged the order dated 22.06.2009, passed by the Additional District Judge No.9, Jaipur City, Jaipur, whereby the learned Judge has upheld the order dated 04.04.2009. The brief facts of the case are that the petitioner, 2 Anil Solanki, married the non-petitioner No.1, Smt. Ila Solanki according to the Hindu rites and customs. However, subsequently certain differences arose between the parties. Therefore, Smt. Ila Solanki filed an application under Section 12 of the Act before the learned trial Court. Vide order dated 13.04.2007, the learned trial Court passed an interim order directing the petitioner to pay Rs.7,000/- per month to her. Since both the parties were aggrieved by the said order, they filed two separate appeals before the District & Sessions Judge, Jaipur City, Jaipur. However, during the pendency of the appeals, both the parties agreed that they did not wish to pursue the appeals. Therefore, they entered into a compromise. Vide order dated 22.05.2007, the appellate Court dismissed the appeals on the basis of the compromise. However, as the petitioner was not paying Rs.7,000/- per month to the non-petitioner No.1, in October 2007 she moved an application under Section 31 of the Act before the learned trial Court for recovery of the amount due. But, vide order dated 10.02.2009, the learned trial Court rejected the said application ostensibly on the ground that the non-petitioner No.1 had an alternative remedy under Section 125 of Cr.P.C. and she should file an application under the said provision. Taking her cue from the the order dated 10.02.2009, on 07.03.2009 the petitioner filed an 3 application under Section 125 of Cr. P.C before the learned trial Court. After hearing both the parties, vide order dated 04.04.2009, the learned trial Court directed the petitioner to pay arrears of interim amount totaling Rs.1,61,000/- to non- petitioner No.1 and to submit the receipt before the learned trial Court. Since the petitioner was aggrieved by the said order, he filed a revision petition before the revisional Court. However, vide order dated 22.06.2009, the learned revisional Court has upheld the order dated 04.04.2009. Meanwhile, the petitioner also moved an application under Section 25(2) of the Act praying that the interim order dated 13.04.2007 be modified or altered. However, vide order dated 10.02.2009, the learned trial Court dismissed the said application. Since the petitioner was aggrieved by the rejection of his application under Section 25(2) of the Act, the petitioner has filed a revision petition before the Court. According to the petitioner, the said revision petition is still pending before this Court. Mr. K.K. Sharma, the learned counsel for non- petitioner No.1, has raised a few preliminary objections : firstly, the petitioner had already filed a revision petition before the revisional Court challenging the order dated 4 4.04.2009. Therefore, the present petition is, in fact, a second revision petition in the garb of a miscellaneous petition under Section 482 of Cr.P.C. Hence, the present petition is hit by Section 397(3) of Cr.P.C. Thus, the petition is non-maintainable. Secondly, even prior to the present petition being submitted before this Court, vide order dated 24.07.2009, the learned trial Court has directed the petitioner to pay a total of Rs.1,82,000/- as arrears of interim maintenance amount to the non-petitioner No.1. It further directed that in case the petitioner fails to do so, then his property should be attached. According to the learned counsel, the petitioner has not challenged the said order. Thirdly, the order dated 04.04.2009 and the order dated 22.06.2009 have culminated in the order dated 24.07.2009. Thus, the petitioner should challenge the order dated 24.07.2009. Since, the petitioner has failed to challenge the final order, therefore, the controversy involved in this case is only of purely academic interest. On the other hand, Mr. R.K. Daga, the learned counsel for the petitioner, has contended that Section 482 Cr.P.C. contains the inherent powers of the Court. The section begins with a non-obstante clause - “nothing in this 5 Code”. Therefore, none of the provisions of the Code can crib, cabin and confine the scope and ambit of the inherent powers. However, as a vast power has been bestowed upon the Court, it has to be exercised sparingly. The said power should be exercised in order to prevent the abuse of the process of any Court, or to secure ends of justice. In order to buttress this contention, the learned counsel has relied upon the cases of Madhu Limaye V/s. State of Maharashtra [(1997) 4 SCC 551], Krishnan V/s. Krishnaveni [(1997) 4 SCC 241, Pepsi Food Ltd. V/s. Special Judicial Magistrate [(1998) 5 SCC 749], Puran V/s. Rambilas [(2001) 6 SCC 338], Satya Narayan Sharma V/s. State of Rajasthan [(2001) 8 SCC 607 and on the case of State through Special Cell, New Delhi V/s. Navjot Sandhu @ Afshan Guru & Ors. [(2003) 6 SCC 641. Therefore, even if there is a bar of filing of a second revision petition contained in sub-clause (3) of Section 397, the said bar cannot oust the inherent jurisdiction of this Court under Section 482 of Cr.P.C. Moreover, in the present case, since the application under Section 125(3) has been filed after the period of limitation, since the said application has been allowed by the learned trial Court, the filing of the application and its granting tantamount to abuse of the process of the Court and of the law. Therefore, the petitioner is justified in filing the present 6 miscellaneous petition. Furthermore, according to the learned counsel, there is no need to challenge the order dated 24.07.2009 passed by the learned trial Court. For, the said order is based on the order dated 04.04.2009. Since the order dated 04.04.2009 is already under challenge in the present petition and since the order dated 24.07.2009 is a consequential order based upon the order dated 04.04.2009, the order dated 24.07.2009 need not be challenged. Heard the learned counsel on the preliminary objections. The magnitude of the power contained in Section 482 Cr.P.C. has taxed the judicial imagination. In catena of the cases, the Apex Court has held that the inherent powers of the Court do not exist merely because Section 482 Cr.P.C. bestowes the said power. In fact, the said power exists by the fact that the powers are inherent in nature. Section 482 Cr.P.C. merely expresses the existence of the said power, but does not bestow the said power. Even in the absence of Section 482 Cr.P.C, the inherent powers would continue to exist. Therefore, Section 482 Cr.P.C merely 7 makes obvious a power which is apparent. Hence, Section 482 Cr.P.C. does not bestow any new power upon the High Court. As far back as 1977, in the case of Madhu Limaye (supra), the Apex Court had held that Section 482 Cr.P.C. begins with a non-obstante clause when it proclaims nothing in this Code shall be deemed to limit or effect inherent powers of the High Court. The words “nothing in this Code” would naturally include Section 397(2) as well as Section 397(3). Therefore, Section 397(2) and by implication Section 397(3) would not prevent the High Court from exercising its inherent powers under Section 482 Cr.P.C. Similar views have also been expressed in the case of Krishnan (supra) wherein the Hon'ble Supreme Court has observed that “even though a second revision to the High Court is prohibited by Section 397(3) of the Criminal Procedure Code, the inherent power is still available under Section 482 of the Criminal Procedure Code.” In the case of Pepsi Foods Ltd. (supra), the Hon'ble Supreme Court stated that inherent powers under 8 Section 482 of the Code could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. It had further observed that “the power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers.” Similarly in the case of Puran (supra), the Apex Court reiterated that “the inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure.” It further observed that “for securing the ends of justice the High Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified.” In the case of Satya Narayan Sharma (supra), the Hon'ble Supreme Court has further proclaimed that “Section 482 of the Criminal Procedure Code starts with the words Nothing in this Code”. According to the Apex Court, the inherent powers can be exercised even if there a contrary provision in the Code. It further observed that “Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised 9 nothwithstanding any other provision contained in any other enactment.” Therefore, if any other enactment contains specific bar, then inherent jurisdiction cannot be exercised to get over the bar. Lastly in the case of Navjot Sandhu (supra), the Hon'ble Supreme Court has opined as under :- “Section 482 of the Criminal Procedure Code starts with the words “Nothing in this Code”. Thus, the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revision powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if 10 there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.” The principles which emerge from the above noted case law : firstly, the inherent powers cannot be cribbed, cabined and confined by any other provision of the Code. However, the inherent powers can be curtailed by a specific bar contained in any other law being in force. Secondly, section 482 Cr.P.C. bestows a vast power. The more vast the power, the more sparingly it should be invoked. Thirdly, the said power should be invoked in order to prevent abuse of the process of the Court, or in order to secure the ends of justice. For doing justice is the cardinal role of the Courts. In fact, it is the very reason for the existence of the Courts. While chasing injustice, the powers of the Court cannot be fettered either by the provisions of the Code or by the technicalities of Law. Therefore, in the present case, the petition is certainly maintainable. However, it is for the Court to consider if the process of the Court has been abused or whether the ends of justice demand and dictate that the petition be entertained. Therefore, the preliminary objection raised by Mr. K.K. 11 Sharma with regard to the maintainability of the petition is, hereby, rejected. Even the second contention raised by Mr. K.K. Sharma is unworthy of acceptance. As stated above, vide order dated 04.04.2009, the learned trial Court had directed the petitioner to pay the arrears of the interim amount totaling Rs.1,61,000/-. Since the petitioner had failed to comply with the said order, vide order dated 24.07.2009, the learned trial Court has directed the petitioner to pay arrears of interim amount totaling Rs.1,82,000/- (the increase amount being due to lapse of time). The petitioner has challenged the order dated 04.04.2009 on the ground that the application under Section 125(3) was filed beyond limitation. Therefore, in case, the plea of limitation were accepted, the order dated 04.04.2009 would necessarily have to be quashed. Since the order dated 24.07.2009 is squarely based on the order dated 04.04.2009, in case the latter order is quashed and set aside, the former order would automatically come to an end. Hence, presently it is not necessary for the petitioner to challenge the order dated 24.07.2009. Although it is not essential that the order dated 24.07.2009 be challenged, but it would have been better that the same were challenged in the present petition so as to 12 preempt the multiplicity of litigation. For, in case the order dated 04.04.2009 is upheld, then the petitioner would be compelled to challenge the order dated 24.07.2009. Thus, under the scheme of things, the petitioner should have challenged the order dated 24.07.2009. However, his non- challenging the order would not adversely affect the maintainability of the present petition. For these reasons, the second contention raised by K.K. Sharma is equally rejected. Mr. R.K. Daga, the learned counsel for the petitioner, has vehemently contended that according to Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 ('the Rules', for short), an application under Section 12 shall be dealt with and the orders enforced in the same manner as laid down under section 125 of Cr.PC. According to the first proviso of Section 125 (3) of Cr.P.C. no warrant for recovery of any amount shall be made unless the application is made to the Court within a period of one year from the date on which it becomes due. According to the learned counsel, the first proviso of Section 125 (3) of Cr.P.C., therefore, provides a period of limitation of one year for the filing of the application for recovery of maintenance amount. According to the learned counsel the period of one 13 year begins from the date of the order passed by the Court. In the present case, the order for payment of the interim amount was passed on 13.04.2007. However, the application under Section 125(3) Cr.P.C. was moved on 07.03.2009. Therefore, the said application has been filed beyond the period of one year. Hence, the said application is hit by limitation. Secondly, the petitioner had moved an application under Section 24(3) of the Act for modifying the order dated 13.04.2007. However, the said application was dismissed vide order dated 10.02.2009, the petitioner has filed a revision petition, which is still pending before this Court. Therefore, this petition should not be decided until and unless the revision petition is first decided by this Court. On the other hand, Mr. K.K. Sharma has raised the following contentions : firstly, the petitioner is mis- interpreting the scope and ambit of Section 125(3) Cr.P.C. Although it is true that the period of limitation has been prescribed by Section 125(3) Cr.P.C, but the period of limitation of one year does not begin from the date of the order; it begins from the date of default due to non-payment of the maintenance amount. For, Section 125(3) Cr.P.C 14 uses the words “for every breach of the order” and further uses the expression “a period of one year from the date on which it became due”. Therefore, the period of one year commences not from the date of the order, but from the date the amount becomes due. Secondly, the order for payment of interim maintenance was passed on 13.04.2007, since not a single penny was paid by the petitioner to the non-petitioner No.1, she filed an application under Section 31 of the Act in October, 2007 i.e., within the period of one year from the date of passing of the order. However, the said application was dismissed on 10.02.2009. The non-petitioner No.1 was directed to approach the Court by filing an application under Section 125 Cr.P.C. Immediately on 07.03.2009, the non- petitioner No.1 filed her application under Section 125 Cr.P.C. Since the non-petitioner No.1 has been pursuing her legal remedies with due diligence, she cannot be faulted for laches or delays. Moreover, her application cannot be dismissed on the ground of being hit by limitation. Thirdly, the non-payment of an interim maintenance is a continuous wrong and the period of limitation begins from the date on which the maintenance 15 becomes due. According to the petitioner himself, he had failed to pay a single penny to non-petitioner No.1. Therefore, the amount was due from April 2007 till 07.03.2009, the date on which the application was submitted. Hence, application was well within the limitation. Forthly, even if the criminal revision petition is pending before this Court against the order dated 10.02.2009, the decision in that petition would function only prospectively and not retrospectively. Therefore, the issue whether the non-petitioner No.1 is entitled to recover the arrears of her interim maintenance amount would not be affected by the judgment in the criminal revision petition. Heard the learned counsel and perused the impugned orders. Section 125 Cr.P.C. is as under : 125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain - (a) His wife, unable to maintain herself, or (b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) His legitimate or illegitimate child (not 16 being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) His father or mother, unable to maintain himself or herself, a Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means. [Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person] Explanation- For the purposes of this Chapter,- 17 (a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority; (b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. [(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's [ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section 18 notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.” (4)........ (5)....... A bare perusal of Section 125(3) clearly reveals that the said provision uses the words “for every breach of the order” and uses the words “within a period of one year from the date on which it became due”. The breach of the order need not necessarily be from the date of the order itself. The said breach could be committed much later than the date of the order. Considering this aspect that the breach can be committed even later the legislature in its wisdom has purposely used the words “a period of one year from the date on which it became due.” Thus, the period of one year would commence from the date when the maintenance or interim maintenance amount became due. Therefore, the said period of limitation would commence from the date when the party has defaulted in payment of the maintenance or interim maintenance amount as directed by the Court. After all, the order has been 19 breached from the date when the party has failed to comply with the order directing payment of maintenance. Therefore, the contention raised by Mr. Dagga that the period of limitation begins from the date of the order, and not from the date the default is committed, is clearly untenable. In the present case, admittedly the petitioner has failed to pay a single penny to the non-petitioner No.1. Therefore, on every month, he has committed a breach of the order and every month he has defaulted in payment of the interim maintenance amount. Therefore, the default was committed from 13.04.2007 till the application was filed on 07.03.2009. Hence, the application filed under Section 125 (3) Cr.P.C. is well within the period of limitation. Therefore, the contention raised by Mr. Daga that the said application is hit by limitation is rejected. Moreover, since the petitioner had failed to pay the interim maintenance amount, non-petitioner