Jagmohan Arora vs Saroj Arora

Mukta Gupta, J.—The issue that arises for consideration in the present petition is whether the learned Metropolitan Magistrate has the jurisdiction to recall/review its order of dismissal of the complaint u/s 125 Code of Criminal Procedure in default of appearance and non-prosecution.

The facts in a nutshell are that a complaint u/s 125 Code of Criminal Procedure seeking maintenance was filed by the Respondent who is the wife of the Petitioner. The learned Metropolitan Magistrate vide its order dated 5th February, 2008 directed the Petitioner to pay a monthly maintenance of Rs. 1000/- to the Respondent which the Petitioner duly paid till 30th March, 2009 when the complaint case No. 218/2007 was dismissed for non-prosecution as the Complainant/Respondent failed to appear. The Respondent thereafter filed an application for restoration of the petition accompanied by the affidavit of the learned Counsel. On the said application, the learned Metropolitan Magistrate recalled its order. Vide the impugned order dated 17th December, 2009 restored the complaint to its original position subject to a cost of Rs. 300/-.

Learned Counsel for the Petitioner contends that the impugned order dated 17th December, 2009 recalling the order dated 30th March, 2009 dismissing the complaint for non-prosecution is contrary to the law laid-down by the Hon''ble Supreme Court in Adalat Prasad Vs. Rooplal Jindal and Others, . It is urged that even though proceedings u/s 125 Code of Criminal Procedure relate to the right of the wife/child/parent to claim maintenance is essentially a civil right but the procedure to be followed for adjudication of the said right is as per the Code of Criminal Procedure, 1973. Moreover, the non-compliance of an order passed u/s 125 Code of Criminal Procedure entails penal action i.e. imprisonment. There is no provision in the Code of Criminal Procedure empowering a Magistrate to review/recall its order. While dealing with the proceedings u/s 125 Code of Criminal Procedure, the Magistrate is bound by the procedure prescribed under the Code of Criminal Procedure In case of dismissal of a complaint by the Magistrate, the remedy lies by approaching the superior court by way of a petition u/s 482 Code of Criminal Procedure or in revisional jurisdiction. The procedure prescribed is a summary procedure as prescribed for summons cases and the same is circumscribed by the Code of Criminal Procedure, 1973. An order of dismissal of the complaint u/s 125 Code of Criminal Procedure is in the form of termination of the complaint and thus is in the nature of termination of a complaint case. The law laid-down by the hon''ble Supreme Court in Adalat Prasad(supra) is reiterated in Subramanium Sethuraman Vs. State of Maharashtra and Another, ; N.K. Sharma Vs. Abhimanyu, ; Everest Advertising Pvt. Ltd. Vs. State, Govt. of NCT of Delhi and Others, ; Dinesh Dalmia Vs. C.B.I., and Dharmeshbhai Vasudevbhai and Others Vs. State of Gujarat and Others, .

Learned Counsel for the Respondent on the other hand contends that the provisions u/s 125 Code of Criminal Procedure relate to a different realm of jurisdiction. Section 127 Code of Criminal Procedure itself permits alteration of an order passed u/s 125 Code of Criminal Procedure thus giving the power of review/recall to the learned Metropolitan Magistrate. He relies upon the decisions in Iqbal Bano Vs. State of U.P. and Another, ; Smt. Prema Jain Vs. Sudhir Kumar Jain, ; Suhird Kamra v. Smt. Neeta and Anr., 1988 (14) DRJ 283. According to him, the bar prescribed u/s 362 Cr. P.C. does not extend to a case of dismissal for non-prosecution as no judgment or final order on merits is passed.

I have heard learned Counsel for the parties at length. In Adalat Prasad(supra) and other decisions relied upon by the learned Counsel for the Petitioner, the Hon''ble Supreme Court was dealing with orders recalling the issuance of process for offences under the penal Statutes. Their Lordship''s held that in the absence of any power of review or inherent power with subordinate courts, the remedy lies in invoking Section 482 Code of Criminal Procedure In a case where the dismissal of the complaint would amount to discharging the accused, a revision against the same would lie and in a case where the dismissal of the complaint amounts to acquittal of the accused an appeal or a leave to appeal against the acquittal would be the remedy open to the Complainant. Learned Counsel for the Petitioner has strenuously relied upon Adalat Prasad (supra) to contend that the Magistrate has no power to recall an erroneous order and the same is without jurisdiction. It may be noted that in Adalat Prasad, their Lordships were dealing with complaint under Sections 120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of IPC.

Section 127 Code of Criminal Procedure provides that on proof of a change in the circumstances of any person receiving a monthly allowance for the maintenance or interim maintenance or order u/s 125 Code of Criminal Procedure the Magistrate may make such alterations as he thinks fit in the allowance of the maintenance or interim maintenance. Under Sub-Section 2 of Section 127 Code of Criminal Procedure, the Magistrate has been conferred with the jurisdiction that in consequence of any decision of a competent civil court any order passed u/s 125 should be cancelled or varied. Thus, the Code permits varying i.e. recalling of its earlier decision by the learned Metropolitan Magistrate in certain contingencies. Thus, the scheme of Chapter IX of the Code shows that the Magistrate does not become functus officio after passing an order u/s 125 Code of Criminal Procedure

A perusal of Chapter IX shows that Section 125 provides for orders that a Criminal Court can pass for maintenance of the wife, children and parents in case a person having sufficient means neglects or refuses to pay maintenance.

Section 126 provides for the procedure to be followed. Section 127 vests the Court with the power to alter the allowances in case of change of circumstances. Thus, impliedly any order passed u/s 125 Code of Criminal Procedure is not a final order and can be amended, altered or recalled by the trial Court with the change of circumstance. There is also no bar that after dismissal for non-prosecution of an application u/s 125 Code of Criminal Procedure, an applicant cannot file a second application. The only loss would be that the applicant would be entitled for maintenance from the date of subsequent application filed. Thus, the scheme of Code itself shows that there is no bar for the Magistrate to amend or recall his order. The proceedings u/s 125 Code of Criminal Procedure are essentially civil in nature, though the criminal process is applied for the purpose of summary and speedy disposal of such matters in the interest of the society. Thus, the proceedings u/s 125 Code of Criminal Procedure which determine the civil rights of the parties in an expeditious manner under the Code of Criminal Procedure cannot be equated with the proceedings of a complaint case as the latter are for the purpose of fact finding of complicity in the commission of a criminal offence. This being the position, to my mind, the decision rendered in the case of Adalat Prasad (supra) would have no application to a case u/s 125 Code of Criminal Procedure

This Court in Prema Jain (supra) held that the order dismissing an application for maintenance in default of appearance is in the nature of an administrative order rather than a judicial one and the Magistrate has power to set aside and restore the application. The issue whether the order of dismissal for non-prosecution is administrative in nature was repelled by the Division Bench of Guwahati High Court in Murti Dhar Singh and Others Vs. Vijendra Singh Jafa, . Though an order for dismissal of the complaint for default is not an order on merit and does not adjudicates the lis between the parties finally, however, such an order is also not an administrative order. It is a judicial order terminating the application and thus a final order to that extent.

In Savitri Rawat Vs. Govind Singh Rawat, , the Hon''ble Supreme Court held that though there was no specific provision under the Code of Criminal Procedure to allow grant of interim maintenance, however, such a power is implicit u/s 125 of the Code of Criminal Procedure It was held that the jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under that Chapter asking a person to pay maintenance to his wife, children or parents, as the case may be, the Magistrate is not imposing any punishment for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil Court in a given case provided the Personal Law applicable to the person concerned authorizes the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. It was held that it is the duty of the Court to interpret the provisions in Chapter IX of the Code in such a way that the construction placed on them would not defeat the very purpose of the legislation. Thus, in the absence of any express prohibition, it was appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct a person against whom an application is made u/s 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application.

In view of the absence of any express prohibition under Chapter IX in my opinion there is no bar on the Court to recall its order dismissing an application u/s 125 Code of Criminal Procedure His Lordships'' J.R. Mudholkar, J. in The State of Uttar Pradesh Vs. Bhagwant Kishore Joshi, while dealing with the permissibility of a preliminary enquiry prior to registration of FIR held:

In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it.

The Bombay High Court in Sau Mandakini Pagire Vs. Bhausaheb Genu Pagire and The State of Maharashtra, , came to the same conclusion. Referring of Section 362 of Code of Criminal Procedure, the Court held that the recalling of dismissal order cannot be treated as an alteration or change in the judgment or final order. Once it is found that the Criminal Court has inherent power to grant interim allowance to the wife u/s 125 Code of Criminal Procedure then it follows that exercise of such inherent powers can be done for settling right the wrong. The principle "ubi-jus-ibi-remedium" is attracted in such a case.

In Kehari Singh Vs. The State of U.P. and Smt. Rekha Singh, , it was held that people in such miserable conditions due to unavoidable conditions may not be able to attend the Court proceedings on every date fixed there to pursue their cases. In such situations, if it is held that the Court lacks the jurisdiction to restore the cases in absence of such provisions, the very object and purpose of the legislation would be frustrated. The paramount rule of interpretation, which overrides the others is that the Statute is to be expounded according to the intent of the think that made it. Therefore, even if there is any lacuna in the Statute, then also it is the obligation on the Magistrate to give effect to the will of the Legislature by a judicial order. Thus, the learned Magistrate is empowered to restore the proceedings initiated u/s 125 Code of Criminal Procedure, which were dismissed for non appearance of the complainant/applicant.

In view of the aforesaid discussion, the present petition and the application are dismissed.