Smt. Bhagwati vs Ram Sewak

M. Wahajuddin, J.—The application of the applicant u/s 125 Code of Criminal Procedure was dismissed for default. An application was made for restoration of the proceeding and the Magistrate restored it. A revision was filed challenging that order and the revisional court has set aside the order of the Magistrate restoring and reviving the application dismissed in default. Aggrieved from the order of the revisional court the applicant has preferred this petition u/s 482 Code of Criminal Procedure. Reliance is being placed upon the Delhi High Court in Smt. Prema Jain Vs. Sudhir Kumar Jain, in which it was held that dismissal order was administrative in nature rather than a judicial one and Magistrate had power to set aside the same and restore it. There is, however, a pronouncement of this High Court itself upon which revisional court has relied. It is the case of Shyamta v. Smt. Dangra 1980 ACR 3 . It was held that a criminal court cannot even review its judgment and order...Only clerical error can be corrected. A restoration cannot be made. The wife, however, could file a second application. In this pronouncement also an earlier pronouncement laying down similar law reported in Harbhajan Kaur Vs. Sant Singh, had been relied upon. It would thus appear that the Delhi High Court has taken conflicting view in the two pronouncements. It may also be observed that the later pronouncement is also not of a larger Bench but of a single Judge only. In the Alld. case Shyamta (supra) reliance has been placed upon an earlier pronouncement of this Court reported in Krishna Rao Palne Vs. Pramila Bai and Others, in which also it was held that the Magistrate has no power to order restoration.

In fact, the crux of the matter is whether the proceedings u/s 125 Code of Criminal Procedure are a judicial proceeding or simply an administrative proceeding. I do not have any doubt in my mind that the proceeding u/s 125 Code of Criminal Procedure is a judicial proceeding and the order of allowing maintenance or dismissing the application are both judicial orders. If they are held not to be so where would be a question of revision. In fact, against any administrative order there will be no further remedy but that is not the position of law. I may also observe that by any administrative order any party cannot be taxed with a liability, not only that there is even a further provision that if the maintenance allowance is not paid without justification and sufficient grounds attachment can be made and even the person taxed with such liability can be sent to jail. When that is position, I am of the opinion that any order passed in the proceeding u/s 125 Code of Criminal Procedure is a judicial order and the proceeding itself is a judicial proceeding. I may also observe that, in fact, it will amount to hold contradictory view on the point if an order allowing maintenance is treated a judicial order while any order dismissing petition for maintenance is treated as administrative order. Any such distinction cannot be made.

I am, therefore, of the view that the order dismissing the application u/s 125 Code of Criminal Procedure happened to be a judicial order. Once I hold so unless there is a provision for review the Magistrate could not review it. It is submitted that, in fact, there is no provision forbidding any review. That submission again will have no force. Powers of review are to be found in Statute itself and only then such powers can be exercised while in the Code of Criminal Procedure there is no power of review. Section 362 Code of Criminal Procedure is a complete bar to alteration of any judgment or order once it has been signed unless it is otherwise provided by any other law for the time being in force. It has been held that this bar now applies to the High Court as well. The case of Naresh and Others Vs. State of Uttar Pradesh, is a direct authority that any judgment and order passed on the criminal side cannot be reviewed or altered. When that is the position, I have no reason to defer with the proposition of law laid down in the case of Shyamta (supra) following earlier Allahabad view, and in the result this application u/s 482 Code of Criminal Procedure is rejected.