Full Judgment Text
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PETITIONER:
JAGIR SINGH
Vs.
RESPONDENT:
RANBIR SINGH & AND
DATE OF JUDGMENT09/11/1978
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SINGH, JASWANT
CITATION:
1979 AIR 381 1979 SCR (2) 282
1979 SCC (1) 560
ACT:
Constitution India, Art. 227(5), power of judicial
superintendence, scope.
Criminal Procedure Code, 1974 5. 397, introduction of
change for avoidance of delay-S. 484 (2) (b), "Corresponding
provision" scope, application to judicial orders made under
Cr.P.C., 1898-S. 125, whether corresponds to . 488 Cr.P.C.,
1898.
HEADNOTE:
Ranbir Singh is Jagir Singh’s son from his separated
first wife. Ill 1971 he and his mother applied for
maintenance under s. 488 of Cr.P.C., 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.P.C. came into force, and under s.
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
s. 488 of the Cr.P.C., 1898 would not survive under s.
484(2) of the Cr.P.C. 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.P.C., 1974 did correspond with s. 488 of
the Cr.P.C. 1898.
The appellant contended that Ranbir Singh’s Revision
application to the High Court was barred by s. 397(3),
Cr.P.C., 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 s. 484(2), Cr.P.G 1974 or section 6 and 24 of the
General Clauses Act.
The respondent submitted that his Revision application
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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 Art. 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 Art. 227,
since the power of superintendence was not meant to
circumvent statutory law. By the 42nd. Amendment Act, clause
(5) was added in Art. 227, which is a verbatim reproduction
of s. 224(2) 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.P.C. 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 s. 397(2)
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 s.
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 v. Bishop of Chestor, [1824] 2 B&C 635; 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
s. 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 s. 484(2)(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
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 defined)(2nd
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Edn Vol. I), Shorter oxford English Dictionary (3rd Edn.
Vol. I); Sackville-West v. Holmsdale (Viscount), [1870] LR.
4 H.L. 543; applied.
(4) Section 125 of the new Code corresponds to s. 488
of the Cr.P.C., 1898 notwithstanding the fact that under the
Cr.P.C. Of 1974, a child who has attained majority, and who
does not suffer from any infirmity, is not entitled to be
maintained b‘y the father. Once an order under s. 488
Cr.P.C., 1898, is deemed to be an order under s. 125 of the
Cr.P.C. 1974, it must be to deemed for all purposes,
including the application of s. 127 of the new Code. [290B,
G]
20-817 SCI/78
284
Nanak Chand v. Chandra Kishore Aggarwal & Ors., AIR
1970 SC 446; referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: 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. S. Narula, M. S. Marwah and D. S. Narula for the
appellant.
S. 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
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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 484(2) 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 484(2) 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. S. 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 397(3) 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 484(2) of the Code of Criminal Procedure 1974 or
Sections 6 and 24
286
of the General Clauses Act. Shri S. 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 397(3)
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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
397(2) 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 397(3) 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 397(3) 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 397(3) 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
397(3) previous Section 435(4) 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 397(3)
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 C.J. in Fox
v. Bishop of Chester(1) "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 397(3) 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
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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 484(1) of the 1974 Code repeals the Code of
Criminal Procedure 1898. Section 484(2) (a) provides for the
continuance and disposal of pending cases in accordance with
the provisions of the old Code. Section 484(2)(b) 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
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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 v. 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. S. 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 484(2) (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 484(2) (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) A.l.R 1970 S.C. 446.
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 v. Holmesdale
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(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
484(2) (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 484(2) (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) L.R. 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
M.R. Appeal allowed.
292