Shyamta vs Dangra

M.P. Saxena, J.

Shyamta, hushand of opposite party No. 1 had moved this application under Section 482 Cr. P. C. for quashing the orders dated Mar. 9, 1978, September 23, 1978 and the proceedings in case No. 2/11 of 1974 (Smt. Dangra v. Shyamta) pending in court of the SubDivisional Magistrate, Marriya, district Basti.

Smt. Dangra, opposite party No. 1 claiming to be the legally wedded wife of the applicant, filed a maintenance application under Section 488 of the old Criminal Procedure Code. It gave rise to case No. 2/11 of 1974. The case remained pending for quite a long time and ultimately her application was dismissed for default on November 26, 1978. She gave an application for restoration on the ground that on the date fixed she was suffering from cold and could not appear nor could instruct her counsel. Although it was urged on behalf of the applicant that there was no provision, under the Criminal Procedure Code to restore the application under Section 488 of the Criminal Procedure Code dismissed in default yet the learned Magistrate restored it by his order dated March 9, 1978. Aggrieved by the said order the applicant filed a revision and reiterated his contention before the learned Sessions Judge but he negatived it on the ground that the Magistrate could restore the application under his inherent powers. This order of the learned Sessions Judge was passed on September 28, 1978. Hence this application under Section 482, Cr.P.C. quashing the aforesaid orders and consequently the proceedings in case No. 2/11 of the 1974.

I have heard the learned counsel for the parties and have given my anxious consideration to the whole matter. The application of the opposite party obviously "was under Section 488 of the Criminal Procedure Code, 1898. Subsection (6) of the section reads as follows

" (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner preseibed in the case of summons cases:

Provided that if the Magistrate is satisfied that he is willfully avoiding service or wilfully neglects to attend the court, the Magistrate may, proceed to hear and determine the case ex parte. An order so made may be set aside for good cause shown, application made within three months from the date thereof."

As held in the case of Smt. Harbhajan Kaur v. Major Sant Singh (A.I.R. 1969 Delhi 298) proceedings under Section 488 are criminal proceedings and not civil proceedings and governed by the provisions of the code, in the criminal procedure code there is no provision for restoration of criminal proceedings.

A criminal court cannot even review its judgment or order. It can only correct clerical or arithmetical error. Section 488(6) contemplates only one situation in which restoration of an order passed under Section 488, Cr.P.C. can be done. It is only when an exparte order has been passed against a husband. This remedy is net available to a wife who files a petition for maintenance. The learned Sessions Judge was wrong in holding that the magistrate could have restored her application in the exercise of inherent powers. As held in the case of Krishna Rao Paine v. Premila Bai and others (1976 C.L.J. 1819.), Magistrate has no power under Section 561A to order restoration. The inherent powers are possessed only by the High Court. The proceedings may be of a quasi judicial nature but that does not mean that the Magistrate dealing with them gets all the powers of a civil court. In Hakimi Jan Bibi v. Mouze Ali (2 Cr.L.J. 213) a Division Bench of the Calcutta High Court had held that the law does not empowers a magistrate to rehear an application for maintenance under Section 488 Cr.P.C. dismissed for nonappearance. I respectfully subscribe to this view. A wife whose application for maintenance has been dismissed for default can file a second application and on this ground also the question of restoration of previous application does not arise.

In the result the orders dated March 9, 1978 passed by the SubDivisional Magistrate and the order dated September 28, 1978 passed by the Sessions Judge, Basti and consequently the proceedings in case No. 2|11 of 1974 pending in the court of the SubDivisional Magistrate, Harriya, District Basti are quashed.