JUDGEMENT
RAFIQ, J. -
(1.)THIS revision petition has been filed at the instance of the husband-petitioner against the order dated 15. 2.2008 whereby the learned Additional Sessions Judge No. 2 Alwar allowed the appeal of the respondent-wife and enhanced the maintenance awarded to the respondent-wife by the learned Additional Chief Judicial Magistrate Alwar under Section 125 Cr. P. C. The Addl. Chief Judicial Magistrate in his order dated 19. 4. 2006 awarded to the respondent wife a sum of Rs. 500/- per month as maintenance from the date of the application dated 4. 1. 2001. Learned Additional District Judge under his order dated 15. 2. 2008 enhanced the amount of maintenance from Rs. 500/- per month to Rs. 1000/- per month.
(2.)I have heard Shri J. R. Tantia, learned counsel for the petitioner and perused the impugned order.
Learned counsel for the petitioner has argued that the amount of maintenance directed to be paid under the provisions of Section 125 Cr. P. C. could not be enhanced by the learned Additional Sessions Judge in the scope of revision. Learned counsel relied on the judgment of this Court in Raj Kumar vs. Mst. Shanta Bai : RLR 2002 (3) 228 and argued that learned Additional Sessions Judge in the scope of revision petition under Section 397 Cr. P. C. had no authority to enhance the amount of maintenance. Such a prayer could be made by the wife only to the Magistrate who passed the first order of maintenance under the provisions of Section 127 Cr. P. C. Learned counsel submitted that maintenance has been directed to be paid from the date of the application dated 4. 1. 2001 and the learned Additional Chief Judicial Magistrate erred in law in directing payment of maintenance from the date of the application and Additional Sessions Judge also committed the same error. It was argued that learned ACJM in exercise of his power conferred on him under Section 125 Cr. P. C. can direct payment of maintenance only from the date of the order and if it decides to grant such maintenance from the date of the application, it is required to record specific reasons for its doing so. Learned counsel therefore prayed that the impugned order passed by the learned Additional Sessions Judge may be quashed and set-aside.
I have given my thoughtful consideration to the argument advanced by the learned counsel for the petitioner and carefully studied the impugned judgment as also the cited judgment.
From perusal of the judgment of the learned Additional Sessions Judge it appears that the argument that it being raised by the petitioner as to the competence of his Court was also raised before him and it was rejected on the premise that Section 127 Cr. P. C. was applicable only in a situation where there was some change in the cir- cumstances of the wife and she could on that basis claim alteration in the quantum of maintenance. Careful study of the judgment reported in Raj Kumar supra reveals that the aforesaid judgment was passed relying on the judgment of the Andhra Pradesh High Court in G. Balraj vs. Smt. Mallamma : 1984 Cr. L. J. 1170. This Court in para 9 of the judgment in Raj Kumar supra held as under:- " 9. A reading of Section 126 Cr. P. C. would show that it provides for procedure and the jurisdiction of the Court where an application under Section 125 Cr. P. C. could be filed. Section 127 Cr. P. C. which is for alteration in the amount is completely different and for this Section 126, Cr. P. C. has no application. Section 127 (1) Cr. P. C. provides a proof of change in the circumstances of any person, receiving under Section 125 a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he things fit. The words "the Magistrate" would mean the Magistrate who had passed the first order of maintenance because Court is strengthened in this interpretation by the fact that Section 128 Cr. P. C. which is the section for enforcement order of maintenance specifically provides that such petition under Section 125 Cr. P. C. may be presented before "any magistrate". Therefore, in these circumstances, the petition under Section 127, Cr. P. C. will have to be filed before the Magistrate who has passed the first order of maintenance.
It is not in dispute that respondent-wife approached the learned Additional Sessions Judge by filing revision petition under Section 397 Cr. P. C. Learned Additional Sessions Judge has held that application for increase in the quantum of maintenance could be moved under Section 127 Cr. P. C. only if there was some change of circumstances. G. Balraj supra was a case in which order of maintenance against the husband was passed at the instance of the wife by the Metropolitan Magistrate of Hyderabad. Thereafter, she filed another application under Section 127 Cr. P. C. for enhancement of the maintenance, but this time before third Metropolitan Magistrate who enhanced quantum of maintenance. It was in that context that the court has held that the word "magistrate" would mean Magistrate who had passed first order of maintenance and in doing so, the court further held that it was strengthened in this interpretation by the fact that Section 128 Cr. P. C. which is section for enforcement order of maintenance specifically provided that such petition under Section 125 Cr. P. C. may be presented before "any Magistrate". It was therefore, held that petition under Section 127 Cr. P. C. will have to be filed before the Magistrate who has passed the first order of maintenance.
(3.)IN Pilli Venkanna vs. Pilli Nookamma : 1998 Cr. L. J. 1922 again, the Andhra Pradesh High Court while dealing with an argument as to alteration of allowance made by the Court under Section 127 Cr. P. C. would take effect from which date, it was held that alternation of allowance can be made from the date of order and not from the date of application. It was in that context that the Court held that it was not open either to the Magistrate or the revisional Court to enhance the maintenance from the date of filing of the application. Therefore, it would be evidence that neither of the courts held that revisional Court in exercise of its powers conferred under Sections 397, 399 and 400 of the Code of Criminal Procedure, 1973 would have no power or authority to enhance the amount of maintenance awarded under Section 125 Cr. P. C. IN fact, Section 397 Cr. P. C. provides that the High Court or any sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Similarly Section 399 Cr. P. C. defines powers of a Session Judge while considering revision petition against the order of inferior criminal Court and in fact, provides that all such powers are exercisable by the High Court under sub-sections (2), (3), (4) and (5) of Section 401 Cr. P. C. shall, as far as may be, apply to proceedings before the Sessions Judge. Section 400 of the Code provides that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge. When the order granting maintenance to the respondent-wife directed payment of only Rs. 500/- per month and the respondent-wife not being satisfied with the quantum of compensation, preferred a revision petition before the Additional Sessions Judge, it was open to the learned Additional Sessions Judge to consider and decide that application on its merit as if it was dealing with the matter as an original court. It is trite law that the revisional court, if it is satisfied that in the process of examining the correctness, legality or propriety of an order, can not only set-aside such order but may also exercise any of the powers as are conferred on courts of appeal by Sections 386, 389, 390 and 391 Cr. P. C. or any Court of session as are conferred on it by Section 307 of the Code. It may be noted that Section 399 (1) Cr. P. C. which inter-alia provides that a Sessions Judge while exercising the powers of revision, in the case of any proceeding, record of which has been called for any the Sessions Judge, may exercise all or any of the powers which may be exercisable by the High Court under sub-section (1) of Section 401 which provides that High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307. Section 386 of the Code inter-alia provides for the powers of the appellate Court which power includes the power to reverse the order impugned directing re-hearing and retrial, alter the finding maintaining the sentence, with or without altering the finding, altering nature or extent, of the sentence and where appeal for enhancement of sentence, reverse finding of sentence, acquit or discharge the accused or ordered to be retried, or alter the finding of maintenance, sentence or with or without altering the finding, altering nature or extent of sentence so as to enhance or refuse the same. Provisions of Section 386 (2) Cr. P. C. are worded in the context of an appeal preferred against the conviction and sentence or an order of acquittal but nevertheless by virtue of incorporation of sub- Section (1) of Section 401 in sub-section (1) of Section 399 of the Code, which would enable the revisional Court of such powers as are exercisable by the original court. IN other words, Additional Sessions Judge while considering the correctness, legality and propriety of the order passed by the magistrate in the present case could also arrive at the conclusion as to the adequacy or otherwise of the quantum of maintenance.
Section 127 Cr. P. C. , as would be evident from the language of its sub-section (1), inter-alia provides for the alteration in the amount of maintenance already awarded under Section 125 Cr. P. C. , on proof of change in the circumstances of any person receiving such maintenance. The kind of interpretation that has been placed by the learned counsel for the petitioner on this provision may lead to incongruous results inasmuch as, in a given case even though the Courts of the Magistrate at first instance may have awarded a very negligible amount of maintenance, the wife would have no remedy except to approach him again even though there may be no change in circumstances. If this plea is accepted, wife would be practically left with no remedy in so far as the revisional powers of the Court of Sessions or of this Court are concerned. Any such interpretation which lead to absurd consequences and may lead to frustrating intention of the Legislature must be avoided at all courts.
Adverting now to the argument that maintenance could not be granted by the Magistrate from the date of the application and could have been granted only from the date of the order and that if at all he wanted to award maintenance from the date of application, he should have recorded special reasons for his so doing, third proviso to sub-Section (2) of Section 125 of the Code on this aspect needs to be noticed which inter-alia provides thus:- " (iii ). Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. "