Telangana High Court
Golla Gopal vs M. Swathi on 20 August, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.8125 OF 2023
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') praying the Court to quash the order dated 20.07.2024 passed in Crl.MP.No.41 of 2023 in MC.No.21 of 2017 on the file of the Family Court-cum-III Additional District and Sessions Judge, Mahabubnagar.
2. The said Crl.MP., was filed by the respondent Nos.1 and 2 herein under Order VI Rule 17 of C.P.C., praying to permit them to amend or alter claim of maintenance from Rs.15,000/- per month to Rs.20,000/- per month to each, towards maintenance, from the date of petition, and Rs.50,000/- towards legal expenses. The said Crl.MP., was allowed vide order dated 20.07.2024 permitting the respondent Nos.1 and 2 herein to amend the maintenance case and also for consequential amendments sought for by them and for carrying out amendment and to file neat copy of the same.
3. Aggrieved thereby, the petitioner who is respondent in the said Crl.MP., filed this petition praying to quash the said order.
4. Heard Sri Karnam Ramesh, learned counsel for petitioner, Sri S.Ganesh, learned Assistant Public Prosecutor, appearing for 2 SKS,J Crl.P.No.8125 OF 2023 respondent No.1 - State, and Sri M.Achuta Reddy, learned counsel for respondent No.2.
5. Learned counsel for petitioner submitted that the order passed by the trial Court in a petition filed under Order VI Rule 17 of C.P.C., permitting the respondents to amend the maintenance petition filed under Section 125 of Cr.P.C., is contrary to Section 10(1) and (2) of the Family Courts Act, 1984 (for short 'Act 1984'). He contended that the impugned order is contrary to the procedure contemplated under Sections 125 to 128 as the Chapter IX of the Cr.P.C., containing the provision of alteration in allowance itself is a scheme containing the procedure under which all the application, substantial and corollary shall be considered and any travel beyond the said scheme would be without jurisdiction. He asserted that the appropriate provision for alteration in allowance can be made only under Section 127 of Cr.P.C., and not under any other provision.
6. In addition to the above, learned counsel for the petitioner contended that the trial Court ought to have seen that the maintenance case filed by the respondents was dismissed with respect to respondent No.1 and allowed granting Rs.5000/- in respondent of respondent No.2 vide order dated 03.01.2019 and aggrieved by the same, Cr.R.C.No.173 of 2019 was filed which was disposed of vide order dated 20.12.2022 remanding the matter to the 3 SKS,J Crl.P.No.8125 OF 2023 trial Court with a direction to dispose of same afresh by following the procedure contemplated under Section 126 of Cr.P.C., for recording evidence in view of the fact that earlier disposal was made basing on the evidence and affidavits filed by the parties, as such, the scope of remand cannot be enlarged and respondents cannot be permitted to amend the maintenance case.
7. Learned counsel for petitioner incessantly contended that the trial Court has misapplied Section 10(3) of the Act, 1984 in order to adopt the procedure contemplated under Order VI Rule 17 of C.P.C., and erred in allowing the petition. He lamented that the trial Court ought to have seen that when a specific provision relating to alteration or amendment of maintenance is contemplated under Section 127 of Cr.P.C., applying Order VI Rule 17 would be without jurisdiction, particularly when Clause-II of Section 10 of the Act, 1984 mandates that procedure contemplated under Cr.P.C., or the Rules made there under shall be applied to the proceedings under Chapter IX of Cr.P.C., even before a Family Court.
8. In support of the above contentions, the learned counsel for petitioner relied on the judgment of the High Court of Andhra Pradesh reported in 2020 (2) ALT (Criminal) 131 whereunder, a specific provision was contemplated under Cr.P.C., for specific purpose of application of any other provision for the said purpose 4 SKS,J Crl.P.No.8125 OF 2023 even to the Family Courts is impermissible. Therefore, prayed this Court to quash the order dated 20.07.2024 passed in Crl.MP.No.41 of 2023 in MC.No.21 of 2017.
9. On the other hand, the learned counsel for respondents submitted that there is no illegality in the order passed by the trial Court in Crl.MP.No.41 of 2023 in MC.No.21 of 2017 permitting the respondents to amend the maintenance petition filed by them. Therefore, prayed this Court to dismiss the Criminal Petition, as the same lacks merits.
10. Having regard to the rival submissions made and on going through the material placed on record, it is noted that the contention of learned counsel for petitioner is that the trial Court erred in allowing a petition filed under Order VI Rule 17 of C.P.C., permitting the respondents to amend the maintenance petition filed under Section 125 of Cr.P.C., as the same is contrary to Section 10(1) and (2) of the Act 1984 and that the same cannot be applicable as per Chapter IX of the Cr.P.C., whereas, it is seen that the trial Court has allowed the said petition by applying the provisions contemplated under Section 10 clause (3) of the Act, 1984. That being so, it is to be seen whether Section 125 of Cr.P.C., covered by Chapter IX of Cr.P.C., is applicable in petition filed under Order VI Rule 17 of C.P.C.
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11. At this stage, it is pertinent to note that in the judgment rendered by the High Court of Andhra Pradesh in Veerisetty Ramesh Babu Vs. Veerisetty Ramadevi 1, the judgment of the Division Bench of Bombay High Court in the case of K.V.More, 3d Jt. Civil Judge (JD) & JMFC, Pune, Baramati District Vs. State of Maharashtra was discussed at length, and in paragraph No.21 observed that "..in the case of VD.Solomon Vs. V.Solomon Mary held that the evidence in proceedings under Section 125 of Cr.P.C., has to be recorded in the Court in view of Section 126(2) Cr.P.C., and evidence cannot be taken in the form of evidence affidavit. Relying on the said judgment, the common High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Gollamudi Ramesh Vs. Modukuri Nagamani held that evidence in the proceedings under Section 125 Cr.P.C., has to be recorded by the Court as per the procedure prescribed under Section 126(2) Cr.P.C.
12. Further, in the case of Kunapareddy @ Nookala Shanka Balaji Vs. Kunapareddy Swarna Kumari and Another 2 the Hon'ble Supreme Court discussed in detail whether a Court dealing with the petition/complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short 'DV Act') has 1 2020 (2) ALD (Crl.) 315 (AP) 2 2016 11 SCC 744 6 SKS,J Crl.P.No.8125 OF 2023 power to allow amendment to the petition/complaint originally filed and the factual background of the above case was with regard to petition/complaint filed by wife, wherein, the respondent No.1 is the wife of the appellant, has filed a case against the appellant and his family members before the Court of IInd Additional Judicial First Class Magistrate, West Godavari, Eluru, whereunder, the amendment petition filed by the wife was partly allowed, against which the husband filed appeal before the Hon'ble Supreme Court. The relevant paragraph Nos.18 and 19 read as under:
"18. In this context, provisions of sub-section (2) of Section 28 of the DV Act gain significance. Whereas proceedings under certain sections of the DV Act as specified in sub-section (1) of Section 28 are to be governed by the Code, the legislature at the same time incorporated the provisions like sub-section (2) as well which empowers the court to lay down its own procedure for disposal of the application under Section 12 or Section 23(2) of the DV Act. This provision has been incorporated by the legislature keeping a definite purpose in mind. Under Section 12, an application can be made to a Magistrate by an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person to claim one or more reliefs under the said Act. Section 23 deals with the power of the Magistrate to grant interim and 7 SKS,J Crl.P.No.8125 OF 2023 ex parte orders and sub-section (2) of Section 23 is a special provision carved out in this behalf which is as follows:
"23.(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence, he may grant an ex parte order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section 22 against the respondent."
19. The reliefs that can be granted by the final order or by an interim order, have already been pointed out above wherein it is noticed that most of these reliefs are of civil nature. If the power to amend the complaint/application, etc. is not read into the aforesaid provision, the very purpose which the Act attempts to subserve itself may be defeated in many cases."
13. Furthermore, in the case of S.R. Sukumar Vs. S.Sunaad Raghuram 3 in paragraph Nos.19 and 20 it is held as follows: 3
(2015) 9 SCC 609 8 SKS,J Crl.P.No.8125 OF 2023 "18. Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows: (SCC pp. 659-60, para
6) "6. ...The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in Para 2 of the complaint so as to make the controlling company of the industrial unit figure as the accused concerned in the 9 SKS,J Crl.P.No.8125 OF 2023 complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. ...
Furthermore, the legal infirmity is of such a nature which could be easily cured."
19. What is discernible from U.P. Pollution Control Board case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint."
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14. Reverting to the facts of the case on hand, it is seen that the trial Court allowed Crl.MP.No.41 of 2023 in MC.No.21 of 2017 vide order dated 20.07.2024 permitting the respondents herein to amend the petition filed under Order VI Rule 17 of C.P.C., to the extent of amending the amount of maintenance as claimed. There is no dispute that petitioner can file the petition for enhancement of amount awarded under Section 126 Cr.P.C., whereas, in the present case, originally, the petitioner was disposed of on 03.01.2019 against which the petitioner filed Cr.R.C.No.173 of 2019 and the same was disposed of on 20.12.2022 remanding the matter with a direction to dispose of the same afresh. Therefore, there is time gap of five years from the date of order and at present, the Court is conducting the trial of the petitioner filed in the year 2019. Therefore, amendment in the amount is justified in view of special circumstances in this case and the same will not cause any prejudice to the petitioner as he can file his defense in this case.
15. In view of the above discussion and having regard to the facts of the case, this Court is of the opinion that mere amending the amount of maintenance claimed would not cause any prejudice to petitioner and that there is no illegality in the order of the trial Court dated 20.07.2024 made in Crl.MP.No.41 of 2023 in MC.No.21 of 2017 and this criminal petition is liable to be dismissed. 11
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16. Accordingly, the Criminal Petition is dismissed.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 20.08.2024 PT