Dismissed

Rasiya v. Musthafa

Kerala HC4 Oct 2012Crl.MC/2328/2012

Case brief

AI extract

What is this about?

In this criminal miscellaneous case, the High Court of Kerala dismissed the petitioner's petition which sought to invoke inherent powers under Section 482 CrPC. The court held that since the Sessions Judge had affirmed the Magistrate's order in revision, reappreciation of evidence was not permissible absent perversity, making the petition non-entertainable.

What did the court decide?

Petition dismissing a further challenge to the affirmed order on the ground of reappreciation of evidence was dismissed as not maintainable.

Rasiya Vs Musthafa — Matrimonial and Divorce | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

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THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934

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Crl.MC.No. 2328 of 2012 ()

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IN CRRP.4/2011 of ADDITIONAL SESSIONS JUDGE, KOZHIKODE- II IN MC.71/2009 of JUDICIAL FIRST CLASS MAGISTRATE,,KUNNAMANGALAM

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PETITIONER(S)/REVISION PETITIONER:-:

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RASIYA

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D/O.ABOOBACKER, AGED 23 YEARS, METHALTHODIKA VEEDU NEELESWARAM, THECHIYADE, KOZHIKODE.

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BY ADVS.SRI.K.PRAVEEN KUMAR SRI.CIBI THOMAS

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RESPONDENT / STATE:-

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1. MUSTHAFA,

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S/O.KOYALI, AGED 26 YEARS, POOVATTIL VEEDU

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RAROTH AMSOM, KOODATHAI BAZAR, KOZHIKODE - 673 001.

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2. STATE OF KERALA,

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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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ERNAKULAM.

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R1 BY ADV. SRI.K.A.SALIL NARAYANAN

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R2 BY PUBLIC PROSECUTOR SMT. R. REMA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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dlk

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Crl.MC.No. 2328 of 2012 ()

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE I: TRUE COPY OF THE ORDER IN MC 71/2009 OF THE JUDICIAL IST CLASS MAGISTRATE KUNNAMANGALAM.

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ANNEXURE II: TRUE COPY OF THE COMMON ORDER IN CRL.R.P. 1/2011 AND 4/2011

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RESPONDENTS ANNEXURES: NIL.

//TRUE COPY//

P.A. TO JUDGE.

dlk

S.S.SATHEESACHANDRAN, J.

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----------------------------------------------Crl.M.C No.2328 OF 2012

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------------------------------------------------------Dated this the 4^th day of October, 2012

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ORDER

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Petitioner is a divorced Muslim woman. She moved an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act 1986, for short, 'the Act' setting forth the claims available under the Act from her husband. She was awarded fair provision and maintenance and also lump sum amount for the idaath period. Her claim for returning of or refund of the value of the gold ornaments and other articles alleged to have been deprived from her by the husband was allowed in part by the Magistrate. To the extent her claims were allowed, the husband preferred a revision. Petitioner/wife also preferred another revision to the extent she was aggrieved by the declining of her claims canvassed of. Learned Sessions Judge, after considering both revisions together, affirmed the orders passed by the Magistrate without any modification, with the result both the revisions were dismissed. Petitioner/wife has filed the aforesaid

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Crl.M.C No.2328/2012

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petition challenging the correctness of the orders passed by the Magistrate to the extent her claims were not allowed, which in revision has been affirmed by the Sessions Judge, invoking the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, for short, 'the Code'.

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I heard the learned counsel for the petitioner. Petitioner/wife has produced convincing material before the Magistrate to establish the claim canvassed for returning of the articles or refund of the value thereof, which she had been deprived of by her husband. But, both the courts have not examined the materials tendered properly and that has resulted in miscarriage of justice, is the submission of the counsel to urge for interfering with the orders passed by the Magistrate and the Sessions Judge declining some of her claims. After going through the orders passed by the Magistrate and also the learned Sessions Judge in revision, I find, the exercise of inherent powers of this court under Section 482 of the Code cannot be resorted to since it can be invoked of only sparingly where it is so found

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Crl.M.C No.2328/2012

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necessary to give effect to the orders of the Code or to prevent abuse of process of the court or to secure the ends of justice. In exercise of the revisional jurisdiction, whether it be by this court or by the Sessions Judge, it is needless to point out, reappreciation of the evidence is permissible only where the order impugned or finding entered into is shown to be perverse, and in no other case. When the Sessions Judge after examining the correctness, legality and propriety of the order passed by the Magistrate has affirmed such orders, that too after perusal of the records of the case, in the absence of exceptional circumstance justifying the invoking of the inherent powers under the Code no further challenge over the orders passed by the Magistrate as affirmed by the Sessions judge is permissible. I say so taking note of the interdiction covered by Sub Section (3) of Section 399 of the Code which emphatically states that where a party has moved an application for revision, then, so far as he is concerned, the order passed by the Sessions Judge shall be final. Though that sub Section would indicate that the finality is so stipulated to interdict him from filing a further revision since such jurisdiction

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Crl.M.C No.2328/2012

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can be exercised by this court also under Section 401 of the Code interdiction placed under the aforesaid Section also indicates that the litigation should have a stop and finality. Of course, such interdiction covered under Sub Section (3) of Section 399 of the Code does not prevent this court from exercising its inherent jurisdiction in a deserving case. Exercise of such jurisdiction invoking Section 482 of the Code is not restricted by any boundaries under the Code or any other law. However, as already indicated, such exercise can be made only sparingly and that too in exceptional circumstances. Challenge raised in the petition against the oder of the Magistrate as affirmed by the Sessions Judge in revision invoking Section 482 of the Code is found to be not entertainable.

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Petition dismissed.

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vdv

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S.S.SATHEESACHANDRAN, JUDGE

Rasiya v. Musthafa

Case brief

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Rasiya v. Musthafa

Case brief

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