Ankur Bhardwaj vs State of U.P. and Another

Virendra Vikram Singh, J.—Heard learned counsel for the applicant and learned Additional Government Advocate for the State. By moving the present application u/s 482 Cr.P.C., the order of the Judge, Family Court, Meerut is under challenge, whereby the court has restored the application of the opposite party No. 2 u/s 125 Cr.P.C. and has proceeded further.

It has been argued that the proceeding u/s 125 Cr.P.C. once dismissed in default cannot be restored as no provisions for the same has been incorporated in Chapter IX of Cr.P.C. and thus, the criminal courts are debarred from recalling/modifying their final order including the order for dismissing the application in default. Reliance has been placed on the case laws of Smt. Bhagwati Vs. Ram Sewak, and in the case of Shyamta vs. Dangra, ACRR-1980-0-3.

It has been conceded that opposite party No. 2 may have a right to move application u/s 125 Cr.P.C., but she cannot have any right for restoration of her application u/s 125 Cr.P.C. moved earlier numbered as Case No. 613 of 2011 now numbered as Case No. 869 of 2013.

The order in question has been passed by the Judge, Family Court. Section 10 of the Family Courts Act, 1984 provides for the procedure to be adopted before this Court. Sub Section (1) of Section 10 provides that the Provisions of CPC 1908(5 of 1908) shall apply to the suits and proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure 1973(2 of 1974) before a Family Court.

Thus, it is not disputed that the Provisions of the Criminal Procedure Code shall apply to an application u/s 125 Cr.P.C., Nowhere in Chapter IX of the Cr.P.C. there is any provision for dismissal of the application u/s 125 Cr.P.C., but the Magistrate or the Judge, Family Court can certainly order the dismissal of the application in default for the simple reason that if the applicant does not turn up for repeated dates, the court is not supposed to keep the application alive for indefinite period. Thus, this power of dismissal of the application in default of the applicant is an implied or inherent power given to the court, even though, no such provision has been incorporated in Chapter IX Cr.P.C.

It is true that the case law relied upon by the learned counsel for the applicant lays down the proposition of law as it has been argued on behalf of the applicant, but in the subsequent pronouncement in the case of Shabihul Hasan Jafari Vs. Zarin Fatma, , it has been held that where the application u/s 125 Cr.P.C. was dismissed due to petitioner''s absence and subsequently on the prayer being made the said order of dismissal, can be recalled or set aside and the case can be restored to its original position for effective adjudication on merits. While arriving at this conclusion that court has passed the order on the analogy that if despite there being no provision for the dismissal of the application u/s 125 Cr.P.C. in the absence of the petitioner the application can be dismissed, the court certainly have the same powers for restoring such application to its original situation. In view of the interpretation of law made in the subsequent judgment, the Court differs from the interpretation made in the judgment passed by the earlier single Bench of this Court. To the opinion of this Court the judgment relied upon on behalf of the application referred to above do not provide the correct proposition of law.

It is evident that by the order of restoration of the application u/s 125 Cr.P.C., the applicant has not been prejudiced at all and that the sole intention of the applicant for moving the present application u/s 482 Cr.P.C. appears to be that opposite party No. 2, his wife be forced to a prolonged litigation by way of asking her to file a fresh application for maintenance u/s 125 Cr.P.C.

Having considered the facts and the proposition of law, the Court does not see any illegality in the impugned order. The application does not have any merit and is liable to be dismissed. The application is hereby dismissed.