Pramod Kumar Mittal vs Smt. Kanchan Devi and Another

V.P. Mathur, J.—The admitted facts of the matter are that Pramod Kumar Mittal and Smt. Kanchan Devi were married sometime in the year 1973. Four daughters were born. Presently the wife is living at Aligarh with her fattier. She moved an application which gave rise to criminal case No. 194/11 of 1981 against Pramod Kumar Mittal purporting to be u/s 125 Code of Criminal Procedure at Aligarh asking for a maintenance allowance of Rs. 400/- per month. A compromise was entered into between the parties and as a result thereof, a sum of Rs. 200/- per month was fixed as maintenance allowance. Subsequently on 10-12-1984 an application purporting to be u/s 127 Code of Criminal Procedure, seeking an enhancement in the amount of maintenance allowance was filed by Smt. Kanchan Devi, which was registered as criminal case No. 83 of 1985. This petition was, however, dismissed on 14-4-1986, which was the date fixed for her evidence, because she did not present herself in the Court on that date. Then a restoration application was moved before the Chief Judicial Magistrate, Aligarh and vide order dated 29-8-1986 the Chief Judicial Magistrate, Aligarh directed the restoration of this petition u/s 127 Code of Criminal Procedure to its original number on payment of costs. A revision, being No. 477 of 1986, was preferred by Pramod Kumar Mittal against this order of restoration and Mr. P.P. Guota, Sessions Judge, Aligarh, vide his order dated 9-4-1987 dismissed the revision holding that in view of the case Smt. Prema Jain Vs. Sudhir Kumar Jain, , an application for maintenance dismissed in default could be restored Feeling aggrieved, Pramod Kumar Mittal has now come to this Court u/s 482 Code of Criminal Procedure and seeks quashing of the proceedings of the criminal case No. 157 of 1986, application u/s 127 Code of Criminal Procedure as well as the order passed by the Chief Judicial Magistrate, Aligarh on 29-8-1986 (restoring the case to its original number) and the order passed by the Sessions Judge, Aligarh on 9-4-1987 in criminal revision No. 477 of 1986. It may also be mentioned here that subsequent to dismissal of the revision the matter went up before the II Additional Munsif-Magistrate, Aligarh before whom the criminal case u/s 127 Code of Criminal Procedure was pending and he disposed of an application of interim maintenance vide order dated 24-4-1987 and this order is also sought to be quashed.

A very simple point of law is involved and it is whether if a complaint is dismissed (even though it may be u/s 125 or 127 Code of Criminal Procedure) it is capable of being restored to its number on the application by the aggrieved party.

The learned Sessions Judge has placed reliance upon the case of Smt. Prema Jain v. Sudbir Kumar. It is a case of Delhi High Court and is reported in Smt. Prema Jain Vs. Sudhir Kumar Jain, . The Court was of the view that an application for maintenance, if it is dismissed for default of the appearance before evidence is recorded, could be restored because the order of dismissal was an administrative order and not a judicial order and the Magistrate has power to set it aside. This case was subsequently considered by this Court in the matter of Smt. Akhtari Begum v. Ahmad Husain 1984 ACR 235 and the Court had dissented from the view taken by the Delhi High Court. It was held that an order passed u/s 125 Code of Criminal Procedure cannot be deemed to be an administrative order. It is a judicial order because the revision lies against such final order. Modification of the order can be made under the provisions of the Code of Criminal Procedure and for default in carrying out the order of maintenance the defaulter can even be sent to jail for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant. Therefore, an order of this nature cannot be considered to be an administrative or executive order. It is a pity that the law laid down by this Court in the case of Smt. Akhtari Begum v. Ahmad Husain (Supra) was not brought to notice of the learned Sessions Judge when he passed the impugned order dated 9-4-1987.

We may further consider the point. In the case of Rajul v. State 1982 ACR 51 this Court had held that in view of the provisions of Section 362 of the Code of Criminal Procedure (new), 1973 the Court''s power to alter or review its judgment or order, through which a case is finally disposed of was limited only to the correction of clerical or arithmetical errors. It had no other power to recall its own judgment or order or set it aside in exercise of its inherent powers. Again, earlier in the year 1980 vide the case of Shyamta v. Dangra 1980 ACR 3 this Court was dealing with a similar application under the old provision of Section 488 Code of Criminal Procedure. It was a wife''s maintenance petition and it was specifically held that the Court had no power to restore it if it had been dismissed for default. It was also observed that Section 488 Code of Criminal Procedure (old) contemplates only one situation in which the restoration of an order passed under that provision of law can be made and it is only when an exparte order has been passed against a husband. Reference was made to the case of Krishna Rao Palne Vs. Pramila Bai and Others, and it was held that the Magistrate had no power u/s 561A to order restoration. The inherent powers were possessed only by the High Court and even if the proceedings u/s 488 Code of Criminal Procedure are quasi judicial in nature, that will not mean that the Magistrate can get all the powers of the Civil Court. Reliance was also placed on the case of Hakimi Jan Bibi v. Mouze Ali 2 CriLJ 213 in which a Division Bench of Calcutta High Court has held that the law does not empower the Magistrate to hear an application for maintenance u/s 488 Code of Criminal Procedure dismissed for non-appearance.

A similar point was considered by the Supreme Court of India when it was dealing with the matter concerning Maj. Gen. A.S. Gauraya v. S.N. Thakur. It is reported in 1986 ACR 500 SC . The Court held that so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code a Magistrate cannot exercise any inherent jurisdiction to restore the case. A second complaint is permissible in law if it could be brought within limitations imposed by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Code of Criminal Procedure does not contain any provision enabling the Criminal Courts to exercise such inherent power. What the Court has to see is not whether the Code of Criminal Procedure contains any provision prohibiting the Magistrate from entertaining an application to restore a dismissed complaint, but the basic task should be to find out whether it contains any provision enabling the Magistrate to exercise the inherent jurisdiction which he otherwise does not have. An earlier decision of the Supreme Court in the case of Bindeshwari Prasad Singh Vs. Kali Singh, , was quoted and relied upon.

This being the legal position, it was not open to the learned Magistrate to direct the restoration of the petition u/s 127 Code of Criminal Procedure, and the order passed by him on 29-8-1986 was an illegal order beyond his power and jurisdiction and consequently the learned Sessions Judge, who confirmed that order vide his decision dated 9-4-1987 in criminal revision No. 477 of 1986, also acted with illegality and his order cannot be up-held. Consequent to this revisional order, the learned II Additional Munsif-Magistrate, Aligarh passed an order of interim maintenance on 24-4-1987. It also is an illegal order since the petition for maintenance u/s 127 Code of Criminal Procedure cannot be deemed to be in existence after its dismissal. It may, however, be made clear that as observed by the Supreme Court in the case of Maj Genl. A.S. Gauraya (Supra) a second application u/s 127 of the Code of Criminal Procedure was permissible in law if it conld be brought within the limitation imposed in Pramatha Nath Taluqdar''s case mentioned above. In this light of the legal position, the petition u/s 482 Code of Criminal Procedure is allowed in part. There is no need to quash the proceedings of criminal case No. 157 of 1986 since it will be deemed to have been dismissed, but the order passed by the Chief Judicial Magistrate on 29-8-1986 restoring the case u/s 127 Code of Criminal Procedure to its original number, and the order passed by the Sessions Judge of Aligarh on 9-4-1987 in criminal revision No. 477 of 1986 as well as the order dated 24-4-1987 passed by the II Additional Munsif-Magistrate, Aligarh, granting interim maintenance shall all stand quashed.