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"1985 (90) CalWN 509"
Code of Criminal Procedure 1973 ? Section 300 -Constitution of India Article 226 -Cases Referred:Bhupinder Singh v. Daljit. Kaur AIR 1979 SC 442Kalyani Debi v. Nirmal Pande AIR 1957 Cal 115Meherunnissa v. Nur Mohammed AIR 1971 All 138Tarubala v. Kebairam AIR 1938 Cal 144 SHAMSUDDIN AHMED J(1) THIS is an application under Article 22 7 of the Constitution of India in which an order passed by the 1st Additional Sessions Judge Howrah in Criminal Motion No. 9 1/84 has been challenged on the ground that while disposing of the said motion the learned Sessions Judge has acted without jurisdiction inasmuch as the construction of law as made by him is absolutely wrong. To appreciate the point raised in this appeal a brief recall of the facts is necessary. Petitioner Santi Deb as wife of the O. P. Netai Chandra Deb filed an application under section 125 of the Cr. P. C. In defence one of the points raised by the opposite party was that she was not entitled to any maintenance as she was living in adultery with one Suphal Karmakar. Allegation of adultery was not accepted by the learned Magistrate. He awarded maintenance. This order was not interfered with by the learned Sessions Judge in a Revisional application filed by the; husband 0. P. Thereafter the petitioner initiated proceedings for realisation off the amount of maintenance awarded to her. In that proceeding the o. P. set up again the plea that she is living in adultery with Suphal Karmakar. As the learned Magistrate acting U/s. 125 (3) of the CR. P. C. directed the O. P. to deposit the arrears of rent in Court he moved the learned Sessions Judge Howrah against that direction in the said Revisional application the learned Sessions Judge-was pleased to direct him to deposit the amount. Thereafter the O. P. filed an application under sec. 125 (5) of the Cr. P. C. for cancellation of the order on the plea that the petitioner was living in adultery. The learned Magistrate recorded evidence and came to the finding that the petitioner was living in adultery with the said Suphal Karmakar and as such is not entitled to receive the amount of maintenance. According to the learned Magistrate since the order was set aside the petitioner is not entitled to any arrears of maintenance whatsoever and it should be deemed that there was no order of maintenance at all. This order was challenged by the petitioner before the learned Sessions Judge in a Revisional application under sec. 397 of the Cr. P. C. Unfortunately at the hearing of this Revisional application the petitioner was not represented. The Learned Judge dismissed the Criminal motion ex parte and he agreed with the finding of fact that the petitioner was living in adultery with Suphal and also confirmed the order of the learned Magistrate that tine petitioner is not entitled to any maintenance as the order of cancellation wipes out the entire order of maintenance leaving nothing for the wife to execute. The learned Judge has relied on a decision reported in AIR 195 7 Cal. . page 115. Sm. Kalyani Deb v. Nirmal Kumar Banda. This order of the learned Magistrate as well as the order of the learned Session Judge is beting challenged in this application under Art. 22 7 of the Constitution as well as U/s. 4 82 of the Cr. P. C. (2) MR. Banerjee appearing for the petitioner had stressed mainly two points in his support. According to him the principles of res- judicata or principles analogous to it are Applicable in a Criminal proceedings. As the O. P. raised a defence that the petitioner was living in adultery with Suphal Karmakar at the initial hearing of an application under sec. 125 Cr. P. C. and the learned Magistrate found that the allegation was baseless and it was also confirmed try the learned Sessions Judge in a Revisional application. The Courts below erred in entertaining this application which has already been decided by the Court. The other points raised by Mr. Banerjee is that the cancellation of the order of maintenance takes effect from the date of the order. It has no retrospective application. As such the Courts below erred in not allowing the petitioner to receive her past maintenance which became due to her prior to the order of cancellation under sec. 125 (5) of the Code. (3) ON the 1st point that the principles of res judicata applies to a criminal proceedings the learned Advocate relied on a decision reported in 1974 Calcutta Weekly Notes page 809 para 9 D. N. Bhattacharjee and ors. v. State of West Bengal. Principles analogous to res-judicata is applicable to a criminal case is not now in dispute. In the instant case the position is also clear that the O. P. . raised a defence that his wife is not entitled to an order of maintenance as she was living in adultery with Suphal. After it was negatived by the Courts below he again raised the plea under sec. 125 (3) and ultimately filed a petition for cancellation of maintenance under sec. 125 (5) Cr. P. C. There is no doubt that the petitioner is not entitled to raise the same plea again and again before the same Court. Since once it has been adjudicated it cannot be placed for adjudication once again but the scope of sec. 125 (3) CR. P. C. is wide enough to entertain such an objection by the Magistrate as he is to satisfy himself before executing the order that the O. P. has failed to comply with the order of maintenance without sufficient cause. But in raising such objection it must relate to a period after passing of the order of maintenance by the learned Magistrate U/s. 125 Cr. P. C. Let us now look into the application filed by the O. P. in this case. In paragraph 2 of the petition he stated that the first party i. e. Santi Rani Deb is now residing in a tenanted house of Sudhangsu Dalui at village Makarda with her paramour Suphal Paramanik and thus she is leading a continuous adulterous life with the said paramour right from before this maintenance order up to this date. On a careful reading of this application it appears that the petitioner ascertained that on the date of the filing of the petition i. e. 11th February 1983 the wife-petitioner was residing in a house at Makarda with Suphal Paramanik but he continued to assert that such adulterous life was being led by the petitioner right from before the maintenance order till the time of the filing of the application. Laying stress of the latter part of this allegation Mr. Banerjee asserted that same objection as was taken by the petitioner at the time of hearing of the petition under sec. 125 (1) has again been raised in the proceedings under sec. 125 (3) of the Code. To me it appears that the basic allegation of the petition is that at the time of filing of the petition she was leading an adulterous life at Makurda precisely on this fact the Court below have found that she is living in adultery with Suphal Paramanik But in doing so the Courts below did not care to find from what point of time she was living in adultery but this finding will not render the proceeding illegal if the order passed by the learned Magistrate is found not to have any retrospective effect. From the evidence as well as the assertion in the petition under sec. 125 there is no doubt that the petitioners. case clearly was that at the time of filing of the petition she was living in adultery with Suphal. This being the concurrent finding of fact by both the Courts this Court will not intervene in an application under Art. 22 7 of the Constitution of India or under section 4 82 of the Cr. P. C. As a result. I am unable to accept the contention raised by Mr. Banerjee. In a decision reported in. AIR 1957 Cal 115 it was held that where it has been already decided upon evidence that the wife was not living in adultery up to a particular date and when the decision has not been set aside by a superior Court it is not open on general principle for another Magistrate or the same Magistrate to go into the same question over again. 1 have already noted that the allegation in the instant application under sec. 125 (5). relate to a period not decided by the learned Magistrate in the proceedings under sec. 125 (5). (4) SECOND point raised by Mr. Banerjee in my view has sufficient force. In the aforesaid decision it. was held that where an order of maintenance is cancelled it must mean as although the order of maintenance was never made and where such is the position there Is no question of any order of maintenance being enforced for there is really nothing to enforce after the order has been cancelled. Learned Sessions Judge has also relied on the decision. Mr. Banerjee submitted that the leaned Judge in the aforesaid reported decision failed to take into consideration. another decision reported in AIR 19 38 Cal. page 144 Tarubala v. Kebalram in the said decision learned Judge decided that where an order directing a husband to pay maintenance to his wife is made and the order is subsequently cancelled under sec. 488 (5) the order of cancellation takes effect from the date of the order and has no retrospective operation. It cannot therefore affect the arrears due up to the date of the order. It may be mentioned that Sec. 4 88 (3) and 485 (5) of the Old Code are identical with Sec. 125 (3) and Sec. 125 (5) of the present Code. As it appears now two Honble Single Judges of this Court have made contrary decisions on the same point. These two decisions were considered by Division Bench of Allahabad High Court reported in AIR 1971 Allahabad page 138 Mehurunnisa v. Nur Mahammed- The Division Bench concluded that the: law enunciated in 1957 Calcutta page 115 is not good law. In a decision reported in AIR 1979 Supreme Court page 4 42 Bhupinder Singh v. Daljit Kaur in was decided that if an order for maintenance has been made against the deserted it will operate until vacted or altered in terms of the provision of the Code itself. It was further held that until the original order of maintenance is modified or cancelled by a higher Court or is varied or vacated in terms of section 125 (4) or (5) or section 127 its validity survives. It is clear from this decision of Supreme Court that the order passed under sec. 125 (1) will remain in force until varied or vacated under sec. 125 (4) or 125 (5) or section 12 7 Cr. P. C. In the instant case as I have already pointed out that the allegation of leading an unvirtuous life related to a period subsequent to the date of the order. Therefore there was no disqualification on the part of the petitioner to receive the maintenance till she was found to be living in adultery. Moreover section 123 (5) does not contain a provision to enable the learned Magistrate to pass an order with retrospective effect. There must be some enabling provision in the section itself on the basis of which an order having retrospective effect can be made. In view of the Supreme Court-decision quoted above in my view the decision relied on by the Courts below namely 1957 Cal 115 is no longer good law. In view of what has been stated above I have no hesitation in my mind to hold that the Court below exceed their jurisdiction in passing an order with retrospective effect. This part of the order is liable to be set aside. (5) MR. Banerjee further argued that the inference drawn by the Court below from the evidence on record was not warranted. On this submission he relied on AIR 1970 Cal 38. In an application under Article 227 of the Constitution this Court is not prepared to re-appraise the evidence again and come to a different finding from that of the Courts below. (6) AS a result this rule succeeds in part. The order passed by the Court below that the petitioner is not entitled to receive the arrears of maintenance from the date of the order under section 125 (1) till the date of the order under section 125 (5) is set aside. I do not interfere with the other part of the order passed by the Courts below. This rule is accordingly disposed of. Rule allowed in part.