2011 ALL MR (Cri) 3176
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE, J.
Kamal Durganand Pagi Vs. Durganand Alias Guru Pagi
Criminal Writ Petition No. 77 of 2011
24th August, 2011
Petitioner Counsel: Mr. A. F. DINIZ
Respondent Counsel: Mr. PAVITHRAN A. V.
(A) Constitution of India, Art.141 - Precedents - Impugned order passed on basis of the judgment which is overruled, held, cannot be sustained and is liable to be set aside. (Para 6)
(B) Criminal P.C. (1973) Ss.125, 397 - Revision - Order granting or refusing interim maintenance - Revision against the order, maintainable. 1992 Cri.L.J. 2605 - Overruled Decision in 2010 ALL MR (Cri) 830 - Rel. on. (Para 5)
Cases Cited:
Mamta Vs. Ashok M. Vaidya, 1992 Cri. L. J. 2605 [Para 4]
Mr. Joaquim Anthony D'Souza Vs. Mrs. Milinda Rosy D'Souza and others, 2010 ALL MR (Cri) 830=Criminal Writ Petition No. 58/2009 Dt.19.7.2010 [Para 5]
JUDGMENT
JUDGMENT :- Heard Mr. A. F. Diniz, learned Advocate for the petitioner and Mr. Pavithran A. V., Advocate for the respondent.
2. Rule. By consent heard forthwith.
3. By this petition under Article 227 of the Constitution of India, the petitioner takes exception to the Judgment and order dated 13th December, 2010 passed by the Additional Sessions Judge, South Goa, Margao, in Criminal Revision Application No. 56/2010 by which revision preferred against an order dated 14th May, 2010 passed by learned JMFC, Canacona in Maintenance Application no.1/M/2010 was dismissed.
4. Learned Additional Sessions Judge placing reliance upon the Judgment of learned Single Judge of this Court in the case of Mamta Vs. Ashok M. Vaidya, 1992 Cri.L.J. 2605 held that the order passed by the learned Judicial Magistrate granting interim maintenance is an interlocutory order and therefore revision under Section 397(2) was not maintainable.
5. Mr. Diniz, learned Advocate for the petitioner placing reliance upon the Division Bench Judgment of this Court in the case of Mr. Joaquim Anthony D'Souza Vs. Mrs. Milinda Rosy D'Souza and others in Criminal Writ Petition No. 58/2009 : [2010 ALL MR (Cri) 830] dated 19.7.2010 submitted that the Judgment in the case of Mamta ( supra) has been expressly overruled and the Division Bench has held that revision against an order granting or refusing interim maintenance is maintainable.
6. In view of the Division Bench Judgment of this Court in the case of Joaquim D'Souza (Supra), the impugned order passed on the basis of the Judgment which is overruled cannot be sustained and is liable to be set aside.
7. In the result, therefore, impugned judgment and order dated 13th December, 2010 passed by the Additional Sessions Judge, South Goa, Margao in Criminal Revision Application No. 56/2010 is quashed and set aside and the matter remanded to the revisional Court to decide the revision application afresh on its own merits.
8. Rule is made absolute in the aforesaid terms. No order as to costs.
9. Parties to appear before the Additional Sessions Court on 27.9.2011 at 10.00a.m. The learned Additional Sessions Judge shall dispose of the matter expeditiously.