SK. Alauddin @ Alai Khan vs Khadiza Bibi @ Mst. Khodeja Khatun and Others

Siba Prasad Rajkhowa, J.—This revisional application is directed against the order dated 11-1-89 passed by the learned Sub-Divisional Judicial Magistrate, Burdwan in Misc. Case No. 46/87 allowing restoration of the Misc. Case to its original number and setting aside the order dated 26-4-88.

The proceeding is one u/s 125 of Criminal Procedure Code. On 26-4-88 the petitioner/wife was absent without taking any step and so the learned Magistrate ordered that the Misc. Case be filed. On 30-4-88 the wife filed a petition praying for restoration of the case stating the grounds therein. Having heard both sides, by the impugned order dated 11-1-89, the learned Magistrate allowed the petition and restored the Misc. Case to file and fixed 22-2-89 for hearing.

The only point for consideration is whether the learned Magistrate has the jurisdiction to restore the proceeding u/s 125, Cr.P.C. to file once it is dismissed for default.

The learned Counsel for the petitioner has submitted that the Criminal Court has no jurisdiction to restore a proceeding which has been dismissed for default. The learned Counsel submitted, as per provision of Section 362 of the Cr.P.C, the Criminal Court cannot alter or review the judgment or final order disposing of a case except to correct a clerical or arithmetical error. In support of his contention, he has relied upon the decisions reported in (1) Bindeshwari Prasad Singh Vs. Kali Singh, ; Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, ; Harbhajan Kaur Vs. Sant Singh, Smt. Harbhajan Kaur v. Major Sant Singh. In the case of Bindeshwari Prasad the Supreme Court held that there is no provision in the Code of Criminal Procedure empowering a Magistrate to review or recall an order passed by him and that this Code does not contain a provision for inherent powers like that of the Civil Court u/s 151 of the CPC This view of the Supreme Court was echoed in the case of Major Gen. A.S. Gauraya. The ratio of the above two cases was followed by Orissa High Court in Ramesh Samal''s case. In Smt. Harbhajan Kaur''s case it was held that proceedings u/s 488 of the Code of Criminal Procedure (1898) are criminal and not civil proceedings. Section 488 of the old Code corresponds to Section 125 of the new Code. Relying on this decision of the Delhi High Court the learned Counsel submits that a proceeding u/s 125, Cr.P.C. being of a criminal nature, the impugned order of recall passed by the learned Magistrate is without jurisdiction as the learned Magistrate is not competent to recall his order finally disposing a case under the Code.

On the other hand the learned Counsel for the opposite party has submitted that a proceeding u/s 125, Cr.P.C. is in the nature of civil proceeding unlike other criminal proceeding and a Magistrate is competent to review or recall his order disposing of a proceeding under the Section. He has drawn support from a decision of the Punjab and Haryana High Court in Smt. Kamla Devi and Others Vs. Mehma Singh, In this reported case it was held that a Magistrate can order restoration of an application dismissed for default on sufficient cause being shown in a proceeding u/s 125, Cr.P.C. and the view taken by that High Court is that proceedings u/s 125, Cr.P.C. are Civil in nature.

Judicial pronouncements of not too distant past indicate that the proceedings for maintenance are in the nature of civil proceedings though the criminal process is applied for the purpose of summary and speedy disposal of such matter in the interest of society. A reference may be made to the decision of the Supreme Court in Jagir Kaur and Another Vs. Jaswant Singh, . There is no conflict between the decisions of the Supreme Court in Bindeshwari''s case and Gaurya''s case on the one hand and the decision in Jagir Kaur''s case on the other hand. In Bindeshwari''s case there was a complaint in which commission of an offence u/s 95 of the Penal Code was alleged. In Gauraya''s case also there was a complaint disclosing an offence punishable under Sections 67 and 72C(l)(a) of the Mines Act, 1952. Unquestionably, these two were criminal proceedings. Whereas the proceeding in Jagir Kaur''s case was a proceeding u/s 488 of the Code of Criminal Procedure (old) which corresponds to Section 125, Cr.P.C. (new).

It is to be borne in mind that a petition filed u/s 125, Cr.P.C. is not a complaint and the person who is arrayed as the opposite party is not an accused.

Following the decision of the Supreme Court as reported in Jagir Kaur and Another Vs. Jaswant Singh, I hold that the instant proceedings before me u/s 125, Cr.P.C. is a proceeding of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceeding of this nature provided sufficient grounds are shown.

In the result, I do not find any Illegality in the impugned order and as such this revisional application stands rejected.