2013 ALL MR (Cri) 4348
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
A.M. THIPSAY, J.
Gahihinath S/O. Hanmant Kotwad Vs. Kausalyabai W/O. Gahininath Kotwad
Criminal Writ Petition No. 813 of 2011
5th September, 2013
Petitioner Counsel: Mr. S.V. GUNDRE, Mr.V.D.Gunale
Respondent Counsel: Mr. S.S. HALKUDE
Protection of Women from Domestic Violence Act (2005), S.29 - Criminal P.C. (1973), S.381(1) - Appeal to the Court of Sessions - To be heard by Sessions Judge or Additional Sessions Judge - Assistant Sessions Judge has no jurisdiction and authority unless empowered by Sessions Judge - Hence, order of Assistant Sessions Judge of allowing maintenance cannot be sustained. (Paras 5, 6)
2. The petitioner is the husband of the respondent. The respondent had filed an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 [For short, ' Domestic Violence Act'] before the Judicial Magistrate First Class, Ausa, seeking monetory reliefs. The learned Magistrate, after holding due inquiry in the matter, rejected the said application. The respondent approached the Court of Sessions by filing an Appeal U/s 29 of the Domestic Violence Act. The Court of Sessions allowed the Appeal and directed the petitioner herein to pay maintenance @ Rs. 1,500/- [ Rupees One Thousand Five Hundred only ] per month to the respondent herein.
3. Though a number of contentions have been raised by the learned counsel for the parties, it is not necessary to discuss the same in details in view of the final order that is proposed to be passed after hearing the learned counsel for the parties.
It has been got confirmed through the registry that on the date of the order i.e. 25/07/2011, Mr. D.S.Hatarote was working as an Assistant Sessions Judge-3 at Latur, which is, even otherwise, clear from the designation of the learned Judge, as appearing below his signature on the copy of the impugned order.
5. Section 381 of the Code of Criminal Procedure [ For short, ' Code ' ] lays down how an appeal to the Court of Session is to be heard and stipulates, inter alia, that the same shall be heard by the Sessions Judge or Additional Sessions Judge. The proviso to sub section (1) empowers the Assistant Sessions Judge or the Chief Judicial Magistrate only to hear the appeals from an order passed by a Magistrate of the second class if such appeals are made over to them by the Sessions Judge of the division, or by the High Court in accordance with the provisions of sub section (2) of Section 381 of the Code.
6. It is, therefore, clear that the appeal came to be heard and decided by a Judge, who was not empowered to hear and decide the same. The hearing of such an appeal by an Assistant Sessions Judge is in contravention of express provisions of Section 381 of the Code. It is clear that the learned Assistant Sessions Judge has exceeded his jurisdiction and authority and, therefore, the order having been passed in excess of his jurisdiction, can not be allowed to stand.
7. The constitutional jurisdiction of this Court under Article 227 of the Constitution of India is meant to be used for ensuring that the sub-ordinate Courts function within the bounds of their authority. This is a fit case, where the jurisdiction under Article 227 of the Constitution of India must be exercised to set the things right.
The appeal shall be heard afresh.
The learned Sessions Judge, Latur shall hear the appeal himself, or assign it to any Additional Sessions Judge working in his Sessions division, for hearing and disposal in accordance with law.
The parties shall appear before the learned Sessions Judge, Latur on 03/10/2013 to seek further directions in the matter.