Jagir Singh Vs. Ranbir Singh [1978] INSC
226 (9 November 1978)
REDDY, O. CHINNAPPA (J) 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 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 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.
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 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) 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 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 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
(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.
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