THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.111 of 2009 Dated:30th July, 2010 Between: Parlapalli Sambaiah ….Petitioner and 1. Parlapalli Sammakka & Anr. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.111 of 2009 ORDER: This Criminal Petition has been directed against the order dated 20.11.2008 passed in Criminal Revision Petition No.42 of 2007 on the file of IV Additional District and Sessions Judge (Fast Track Court), Karimnagar, whereunder and whereby the learned Additional Sessions Judge dismissed the revision for non-prosecution. 2. Background facts in a nutshell leading to filing of this petition by the petitioner are: 1st respondent herein filed M.C.No.11 of 2005 on the file of the Judicial Magistrate of First Class, Godavarikhani, under Section 125 Cr.P.C. claiming maintenance at the rate of Rs.9,000/- per month. The learned Magistrate allowed the application in part and granted Rs.1,500/- per month as maintenance to the 1st respondent herein. Assailing the order passed by the learned Magistrate in M.C.No.11 of 2005, the petitioner herein filed Criminal Revision Petition No.42 of 2007 on the file of IV Additional District and Sessions Judge (Fast Track Court), Karimnagar. The learned Additional Sessions Judge, dismissed the revision for non- prosecution on 20.11.2008. The order passed by the learned Additional Sessions Judge on 20.11.2008 reads as hereunder: “Counsel for Revision Petitioner is absent. The matter is posted for dismissal. Since there is no representation, the Revision Petition is dismissed.” Hence, this Criminal Petition by the petitioner. 3. This Criminal Petition came to be admitted on 21.01.2009. 1st respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner. There is no representation on behalf of the 1st respondent. 5. Learned counsel appearing for the petitioner submits that the learned Additional Sessions Judge exercising the revisional powers cannot dismiss the application for maintenance for default. A further submission has been made that when the revision was called by the learned Additional Sessions Judge, learned counsel appearing for the petitioner was in another court and therefore, he could not proceed with the hearing of the revision. In support of his submissions, reliance has been placed on the Division Bench judgment of this Court in C.Subramanyam v. C.Sumathi & Anr.[1]. 6. In C.Subramanyam’s case (supra), the proposition of law laid down is that the criminal court has no power to review its own judgment, but it can only correct clerical or arithmetical errors therein. For better appreciation, I may refer para.14 of the judgment, which reads as hereunder: “14. In view of the above discussion, we hold that, firstly a Magistrate has no power to dismiss a petition under Section 125 Cr.P.C. for default, and secondly, for any reason if it is dismissed, the said court will become functuous officio and it has no power to set aside the default order, the earlier order is illegal notwithstanding . In such a case, the affected party has to take recourse to the revisional jurisdiction as contemplated under the Code of Criminal Procedure.” Coming to the facts of the case on hand, it is the husband, who filed the revision assailing the maintenance granted to the wife, and therefore, it is for him to decide either to prosecute or not to prosecute the revision and if he is not interested to prosecute the revision, there is no obligation on the part of the Court to adjudicate the issue on merits. Be that as it may, the petitioner has come up with a plea that the counsel engaged by him was attending another Court on 20.11.2008 as such he could not proceed with the revision. Ground No.3 of the petition reads as hereunder: “The petitioner submits that there is no provision in the Criminal Procedure Code for ordering restoration of Criminal Revision Petition filed under Section 397 Cr.P.C., which was dismissed for non-prosecution in view of the Provisions of Section 362 of Cr.P.C., and the provisions similar contained in C.P.C. are not applicable. It is submitted that the Advocate of the petitioner was attending in another Court on 20.11.2008 as such he could not attended the Court when Crl.R.P.No.42 of 2007 was called.” In view of the reasons assigned by the petitioner for not prosecuting the revision when the case was called, I deem it appropriate to set aside the order dated 20.11.2008 passed in Criminal Revision Petition No.42 of 2007, remanding the matter back to the revisional Court to decide the matter afresh after hearing both the parties. 7. Accordingly, the Criminal Petition is allowed setting aside the order dated 20.11.2008 passed in Criminal Revision Petition No.42 of 2007 on the file of IV Additional District and Sessions Judge (Fast Track Court), Karimnagar. The petitioner must prepare to proceed with the hearing of the revision on the first date of hearing. In case of his failure to proceed with the hearing of the matter on the first date of hearing, the order dated 20.11.2008 passed in Crl.R.P.No.42 of 2007 holds good. No costs. _______________________ B.SESHASAYANA REDDY, J. Date:30th July, 2010. cs THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.111 of 2009 Dated:30th July, 2010 [1] 2004 (1) ALT (Crl.) 341 (DB) (AP)