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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