Allahabad High Court
Smt Vandana And Another vs State Of U.P. And Another on 16 December, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- APPLICATION U/S 482 No. - 27618 of 2022
Applicant :- Smt Vandana And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rajesh Kumar Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Applicants before this Court are aggrieved that their application filed under Section 125 Cr.P.C. was dismissed by impugned order dated 05.10.2021 in default.
Sri Rajesh Kumar Dubey, learned counsel for applicants submits that applicants have not filed any recall application as there is a dispute whether such application would be maintainable or not.
This Court in Akhilesh Kumar vs. State of U.P. and another, Application u/s 482 No. 22884 of 2017 decided on 01.08.2017 has held that -:
"I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record.
In the cases relied upon by the learned counsel for the applicant it has been held that the order dismissing the application under Section 125 Cr.P.C. in non-prosecution cannot be restored as the restoration application is not maintainable. But this Court in Kehari Singh Vs. State of U. P. and another reported in 2005 Crl. L. J. 2330 has clearly held that if the petition under Section 125 Cr.P.C. is dismissed in default due to non appearance of the petitioner, the restoration application moved to restore the petition can be allowed recalling the dismissal order exercising the implied powers. Similar view was taken by the Bombay High Court in Sau. Mandakini B. Pagire Vs. Bhausaheb Genu Pagire and another reported in 2009 Crl. L. J. 70. In Sau. Mandakini (Supra) Bombay High Court has held that proceedings of maintenance under Section 125 Cr.P.C. are quasi civil in nature and order dismissing the maintenance application can be recalled in exercise of inherent powers of criminal court. Provisions contained under Section 362 Cr.P.C. is not attracted in this respect as it is not the review of the judgment and order.
Although specific provision for moving restoration application in case petition under Section 125 C.P.C. is dismissed for non appearance is not provided in Section 125 and 126 Cr.P.C. but there is specific provision that if ex-parte maintenance application is allowed the person against whom maintenance order has been passed may apply for recall of the order. If these provisions are minutely analysed in consonance with the questions raised in this matter and also case laws relied upon by the learned counsel for the applicant, it is evident that there is no express prohibition under the Code of Criminal Procedure in allowing the restoration application moved for setting aside the order dismissing the petition."
In view of above, this application is disposed of with liberty to applicants to move application to recall order dated 05.10.2021 in Case No. 306 of 2016 (Smt. Vanadana and another vs. Ramkesh) under Section 125 Cr.P.C., Police Station- Narahat, District- Lalitpur and if such an application is moved, same shall be decided by learned trial Court in accordance with law.
Order Date :- 16.12.2022
Nirmal Sinha
(25/282 fresh cases)
