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Judgment
Through the medium of instant petition, petitioner seeks re-hearing of the petition bearing 561-A Cr.P.C. No.65/2008 & connected MPs, which has
already been dismissed vide order dated 28.10.02017 without deciding the main issue raised by the petitioner, inter alia, on the following grounds:-
a) That the learned Chief Judicial Magistrate, Jammu, had no jurisdiction to pass the order impugned on the basis of same material and evidence which
was earlier considered by the learned Sessions Judge and confirmed by this Court that the respondent had failed to prove that she was the daughter of
the petitioner, has not been decided due to oversight. The said petition, therefore, deserves to be reheard after recalling the order dated 28.10.2017.
b) That in the earlier round of litigation, the learned Sessions Judge, Jammu has clearly recorded a finding that there was no iota of evidence that the
respondent was the daughter of the petitioner. The said order has been confirmed by this Court on the basis of reference made by the said Court.Â
The respondent in her application filed before the trial Court clearly pleaded that in view of the said judgment passed by the learned Sessions Judge,
Jammu, holding that she had failed to prove the paternity, she should be allowed to prove the paternity by summoning of the witnesses mentioned
therein. She was allowed to lead the evidence. But subsequently, the statement was made that no further evidence would be lead. It was, therefore,
vehemently argued before this Hon‟ble Court at the time of hearing on 22.09.2017 by the counsel for the petitioner that in these circumstances, the
trial Court had no jurisdiction to record the contrary finding to that of the learned Sessions Judge, Jammu on the basis of the same material.Â
c) That this Hon‟ble Court had recorded a finding that the proceedings could be quashed under inherent power only in order to prevent the abuse of
process of law or to otherwise secure the ends of justice. This Hon‟ble Court has further held that the power under Section 561-A Cr.P.C. could
be exercised with exceptional circumstances when the Court comes to the conclusion that there was inherent power in correctness or perversity in the
order.  In the present case, as submitted above, the learned Sub Judge (CJM) Jammu had no jurisdiction to record a finding contrary to the finding
recorded by the superior courts on the same facts. The petitioner, therefore, had raised a serious question of lack of jurisdiction supported by the
judgment passed by the Hon‟ble Supreme Court.
d) That due to non consideration of the aforesaid points which goes to the jurisdiction of the matter and having not been decided, the petitioner has
highly been prejudiced. In these circumstances, the petition deserves to be re-heard and decided afresh.
e) That during the course of arguments, it was also pointed out that the respondent has attained majority and had solemnized the marriage on
14.11.2015. This fact was also admitted by the counsel for the respondent.
f) That there are two types of review i.e. (1) review on merit and (2) review due to procedural lapses/mistake. The review on merit is permissible only
if there is an expressed provision contained in an Act. However, in case of procedural review, the Court has inherent power to correct its error in
order to do justice on the well known principle of law that acts of the Court should not prejudice any party. In the present case, since due to mistake
and oversight, the main plea raised and argued by the counsel for the petitioner regarding the jurisdiction of Court below has not been decided, the
present petition is maintainable.
g) That alternatively in the facts and circumstances of the case, the order dated 28.10.2017 passed by this Court deserves to be recalled/reviewed on
the aforesaid grounds.
In support of his contention that the High Court has inherent power to correct its own order, learned counsel for the petitioner has relied upon
decision of Allahabad High Court in case titled „Raj Narain and others Vs. State‟ reported in 1959 AIR (Allahabad) 315; the law laid down by
Hon’ble Supreme Court in cases titled ‘Rajinder Singh Vs. Lt. Governor, Andaman & Nicobar Islands‟ reported in 2006 AIR (SC) 75; and
Minu Kumari and Anr. Vs. State of Bihar and ors. reported in 2006 AIR (SC) 1937.
Heard learned counsel for the petitioner at length and gone through the petition. I have also gone through the law on the subject.
This court while deciding the petition u/s 561-A Cr.P.C No.65/2008 on 28.10.2017, after detail argument, dismissed the petition. The concluding
para of said order reads as under :-Â
“20. In present case, there is finding of two courts below that respondent was born out when there was matrimonial relationship between petitioner
and mother of respondent. Both courts below have arrived this finding on appreciation of evidence. Further as per provision of 488 Cr.P.C. the
illegitimate child is also entitled for maintenance from his/her father.Â
In 1995 (2) CRIMES 306 in case titled Ganesh Naryan Hedge Vs. Bangarappa, it is held as under by the Apex Court:-Â
“10. Section 399 of the Code of Criminal Procedure confers upon the Sessions Judge the power to revise any order made by the Magistrate but
sub-section (3) thereof declares at the same time that ""(W)here any application for revision is made by or on behalf of any person before the Sessions
Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceedings by way of revision at the instance
of such person shall be entertained by the High Court or any other Court.
Section 482 of the Code saves the inherent powers of the High Court. It reads:Â
Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure
the ends of justice.""Â
While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power
of the High Court under Section 482, it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising
inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to
exercise his revisory power in the matter.â€Â
So in terms of above law also while acting under Section 561-A Cr.P.C. and that too after the learned Sessions Judge had declined to interfere in
the matter, this court should not enter into the arena of appreciation of evidence.Â
In view of above, this petition is dismissed.â€Â
Bare perusal of concluding para, it is evident that High Court relying on judgment of Apex court has held that High Court cannot act as second
revisional court under the garb of inherent power. There is concurrent finding of two courts below that respondent was born out when there was
matrimonial relationship between petitioner and mother of respondent. This finding has been arrived by two courts below after appreciating the evident
on record. High court under inherent power cannot re-appreciate the facts and give different finding to that of two courts below.
High court under inherent power has only to perform a tripple function. It gives effect to orders passed under the Code. It prevents the abuse of the
process of the Court, and it secures the ends of justice. Inherent Powers help to keep the prestige and credibility of the judiciary. This power has to be
used sparingly and rare cases; in each cases where revision has been dismissed by Sessions Judge, a petition under section 561-A Cr.P.C would not
be maintainable. Where there is miscarriage of justice only in that cases the inherit power is exercisable.
In present case, Additional Sessions Judge, Jammu, who has dismissed the revision of petitioner vide order dated 19.08.2002, in exercise of
revisional jurisdiction on sound principle duly appreciating the evidence and documents on record. This Court in exercise of power under SectionÂ
561-AÂ Cr.P.C. will not dwell into the matter for the purpose of sifting the evidence and venture into a mini trial and cannot act as if it was a trial
judge as only satisfaction about existence paternity of respondent.
Further, section 369 of Cr.P.C. reads as under:Â
“Court not to alter-judgment.- Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of the High
Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical error.â€
In terms of section 369 Cr.P.C., no criminal court can alter or review judgment, once it has been signed,except to correct clerical error.
Now question arises as to whether the grounds taken by petitioner in this petition, amounts to clerical error, and so petition is required to be heard a
fresh. Bare perusal of grounds taken and order passed by this court in 561A Cr.P.C. No.65/2008 & connected MPs, on 28.10.02017, it is evident that
these are not clerical errors. This court while deciding the matter has categorically held that under inherent power, this court cannot re appreciate
whole evidence and give different finding to that arrived by two courts below. All the grounds taken are same to that taken in revision petition before
Sessions Court and petition u/s 561-A Cr.P.C. I have gone through the law cited by counsel for petitioner. These are not applicable in present set of
circumstances.
Under the present petition, this court cannot re-hear the petition which has already been decided. If it is done so, then there will be no end of
litigation. Already respondent is agitating the matter of maintenance since two decades and till today she has not received any result as petitioner has
abused the process of law with one mode to another.Â
In view of above, this petition is dismissed.