Anandrao S/O Marotrao Kharabe vs Madhuri Anandrao Kharabe
2002 Latest Caselaw 1013 Bom

JUDGMENT

R.S. Mohite, J.

1. Rule. By consent rule is made returnable forthwith.

2. By this revision the applicant-husband seeks to quash and set aside the order dated 26-11-2001 passed below Exh. 14 in Petition No. E-30/2001 pending on the file of the Family Court, Nagpur. By the impugned order, the Family Court has rejected a preliminary objection relating to his jurisdiction and held that he has jurisdiction to entertain petition under Section 127 of Criminal Procedure Code. The main argument which was made on behalf of the applicant was that an application under Section 127 can only be entertained by the same Magistrate who had passed the order in an application under Section 125 Criminal Procedure Code. The contention is that, the use of words, "the Magistrate" used in Section 127 of the Criminal Procedure Code must mean "the Magistrate" who has passed the order granting maintenance under Section 125, Criminal Procedure Code. My attention is drawn to the fact that in Section 125, Criminal Procedure Code the word used are "a Magistrate". The argument is that any Magistrate of the First Class can pass an order under Section 125 of Criminal Procedure Code in view of the words, "a Magistrate", but since different words, "the Magistrate" have been used in Section 127 that must necessary mean that the legislature contemplated that an order under Section 127 be passed by the very same Magistrate. The reliance has been placed by the applicants on a judgment of this Court in the case of Vitthalrao v. Ratnaprabha, 1978 Mh.LJ. 393. This case decided by M.D. Kamdi, J. was held to be per incuriam by another judgment of this court in the case of Savitribai v. Vitthalrao, 1986 M.L.R. 27. In the later case the order under Section 125 was passed by the J.M.F.C., Shrirampur, but the beneficiary filed an application under Section 127, Criminal Procedure Code at Aurangabad, it was held that the Court at Aurangabad has jurisdiction.

3. One more judgment of this court in the case of Prabhakar v. Karuna, 1988 B.M.C. 355 decided by G.G. Loney, J. takes the same view as has been taken in 1988 Mh.LJ. 27. In this case, it has been categorically held that the words "the Magistrate" cannot mean "same Magistrate" and the "same court". It has been held in this case that under the scheme of the Act, the application under sections 125 and 127 of Criminal Procedure Code are to be decided by the Magistrate, First Class who are having co-extensive jurisdiction.

4. On behalf of the applicant-husband reliance is made upon a judgment of the Apex Court in the case reported in AIR 2001 SC 1161. That was a case relating to dishonour of the cheque and consequent proceeding under Section 138 of the Negotiable Instruments Act. In that case the Apex Court was called upon to construe the meaning of the words "the Bank" in contradistinction with "a Bank", it was held by the Apex Court as under:

".........Use of the word "a Bank" and "the Bank" in the section is indicator of the intention of the legislature. A former is indirect article and the latter is prefix of the direct article. If the legislature has same meaning for "the Bank", there was no cause or action for meaning it distantly and differently by using a different article"

5. In my view this judgment docs not come to the aid of the applicant. The words in the present case "a Magistrate" and the words, "the Magistrate" do not appear in the same section. The power and scope of Section 127 is distinct from the power and scope of Section 125, Criminal Procedure Code. If the interpretation as sought by the applicant is permitted then it could lead to several difficulties. A Magistrate might change, be promoted or retire and, therefore, it would not be possible for the earlier Magistrate to hear the application under Section 127. To get over the difficulty, it was argued that what the term "the Magistrate" really means; is not the same Magistrate, but the same Court, thus interpreting the word, "the Magistrate" as "the Court" or "the same Court" or "the Magistrate holding charge of earlier post". All these interpretations would do violence to the language of section and I am not inclined to take this view specially when such interpretation has been expressly ruled out by the judgment of this Court, by giving cogent reasons.

In the circumstances, the rule is discharged.