Suryakanta W/O Rahul Shirsat And ... vs Rahul S/O Gopalrao Shirsat And ...
2003 Latest Caselaw 1297 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Rule, made returnable forthwith and heard by consent of parties.

2. This petition is directed against the judgment dated 22-11-2002 passed by the Joint District Judge, Akola in Criminal Revision No. 35 of 2001 reversing the order dated 22-11-1999 passed below exhibit 15 in Misc. Criminal Case No. 146 of 1998 by the Judicial Magistrate, First Class, Akot.

3. Petitioner No. 1 is the wife of respondent No. 1 and petitioners No. 2 and 3 are their children. The petitioners had filed application under Section 127 Criminal Procedure Code before the learned Magistrate for enhancement of maintenance allowance granted to them. The said application remained without signature of petitioner No. 1 and, therefore, she filed application (exhibit 15) before the learned Magistrate seeking permission to put her thumb impression on the application filed under Section 127, Criminal Procedure Code. The respondent No. 1 opposed the application on the ground that there is no provision to sign the application once it is put up and that the application was made before one year.

4. After hearing both the sides, learned Magistrate held that the applicant was present at the time of filing of application as was revealed from roznama and that the Vakalatnama is signed by her and in view of this, there is proper presentation of the application. However, learned Magistrate held that now the petitioner No. 1 cannot be allowed to put thumb impression backdated. Hence the learned Magistrate rejected the application. .

5. The respondent No. 1 carried the said order in revision. The learned Revisional Court held that there was no proper presentation of the application as the application under Section 127, Criminal Procedure Code was not signed by the petitioner No. 1. The learned Revisional Court allowed the revision and consequently, the learned Magistrate has closed the proceedings vide order dated 10-12-2002.

6. The learned counsel for petitioners contended that the impugned order holding that there was no proper presentation of the application under Section 127, Criminal Procedure Code, is erroneous and no prejudice would be caused to the respondent No. 1 if the order is set aside and the application under Section 127, Criminal Procedure Code is allowed to be pursued.

7. The proceedings for maintenance; enhancement of maintenance allowance contained in Chapter 9 of Criminal Procedure Code are of civil nature. In such proceedings, written statement/reply can be filed by the respondent. Even though these proceedings are tried by the Judicial Magistrate, First Class, it cannot strictly be said that these proceedings are tried like any other criminal prosecutions. This Court has made this position clear in its judgment in the case of Baburao Akaram Kalaskar v. Kusum Baburao Kalaskar, 1980 Mh. L. J. 871. Paragraph 8 of the said judgment, which is relevant for the present purpose, reads as under:--

"It is an admitted position that there is a parallel jurisdiction of the Civil Court and the Criminal Court in the matter of granting or allowing the maintenance allowance. It is only as a matter of expeditious remedy and summary procedure that a Scheme for grant of maintenance allowance is provided under the Criminal Procedure Code. If we peruse the scheme of this proceeding as per Chapter 9 of the Code of Criminal Procedure, we find that the entire chapter and the scheme is independent of the Code of Criminal Procedure. We find that unlike the procedure adopted in regular criminal cases, the application for maintenance under Section 125 is not required to be verified by the Magistrate. No sooner the proceedings are filed, the notice is issued to the non-applicant, as in a Civil Suit. Further, we find from Section 126(2) of the Criminal Procedure Code, that the proceedings are conducted in the presence of the party, against whom the order for maintenance is proposed to be made, but the proviso to this Sub-section states that in case the Magistrate is satisfied that the non-applicant is wilfully avoiding service or is negligent to attend the Court, he may proceed to hear and determine the case ex parte as in civil proceedings. It further provides for setting aside of such ex parte order within 3 months from the date thereof on sufficient cause being shown by the non-applicant for his non-appearance. Subject of course to payment of cost to the applicant. This also in my view is a matter, which is exclusively civil in nature. Sub-clause (3) of this Section also provides payment of costs to the party at the time of deciding the case under Section 125 of the Criminal Procedure Code. It is seen from the provisions of Section 127, Clause 2 of the Code of Criminal Procedure, that after the passing of the order under Section 125, if there is a change in the circumstances as a consequence to any decision of the competent civil court, the order under Section 125 shall be cancelled by the concerned Magistrate."

8. It is found from the application under Section 127, Criminal Procedure Code that it was not signed by the petitioner No. 1 for herself and for petitioners No. 2 and 3, being minors. The verification, with the permission of the Court, is permissible under Order 6, Rule 15, Civil Procedure Code, if it was earlier left to be done. In my view, looking to the nature of the proceedings, the learned Magistrate ought to have allowed the application (exhibit 15) by allowing the petitioner No. 1 to put her thumb mark on the main application. The Vakalatnama filed in the proceedings, admittedly, bears the thumb mark of the petitioner No. 1 and that the roznama shows that the petitioner No. 1 was present at the time of filing the application. Moreover, while seeking permission to put thumb impression on the main application, the petitioner No. 1 does not deviate from the contents thereof. The order passed by the learned revisional court holding that there was no proper presentation of the application, is absolutely wrong. In my view, the learned Magistrate should not have stopped at a finding that there was proper presentation, but would have allowed the petitioner No. 1 to put her thumb impression on the main application. The finding of the learned Magistrate that the petitioner No. 1 could not be allowed to put her thumb impression on back date is on wrong assumption. When somebody signs - it amounts to a motion, action, gesture or word by which a command, thought or wish is expressed. Thus, if the petitioner No. 1 is now allowed to put her thumb mark, it does not mean that she is being allowed to do so backdated, but plainly enough, she would be rectifying the curable mistake.

9. Thus, the impugned order will have to be set aside. Consequent order passed by the learned Magistrate on 10-12-2002 closing the proceedings will have also to be set aside. Both the orders are accordingly set aside.

10. The learned counsel for respondent No. 1 submits that the writ petition is not maintainable before this Court. The learned counsel relies on the ratio laid down by this Court in Shivaji Raghunath Gaikwad v. Jijabai Shivaji Gaikwad and Anr. 1-1986(1) Crimes 108. He has further relied upon Ashok Shamjibhai Dharode v. Mrs. Neeta Ashok Darode and Anr. 2001(2) Mh. L.J. 115. In these cases, this Court has generally held that the powers under Article 227 of the Constitution of India are wider as well as restrictive; they should be used in exceptional circumstances; sparingly and in no case, the parties should be allowed to invoke the same as of right and in a routine manner as if the High Court is a revisional court. In the present case, this Court is not re-assessing or re-appreciating the evidence on record and on the contrary, the present case being an exceptional one, exercise of the powers under Article 227 of the Constitution of India by this Court is definitely called for.

11. Learned counsel for respondent No. 1 submits that the behaviour of the petitioner No. 1 is blame-worthy inasmuch as the petitioner No. 2 Mangala is married before filing of the petition on 25-4-2003 and this fact is not disclosed in the petition which is filed on 5-9-2003. The respondent No, 1 can very well raise his grievances before the learned Magistrate, but that alone cannot be a ground to reject the petition.

12. In this view of the matter, writ petition is allowed. Misc. Criminal Case No. 146 of 1998 is restored on the file of the Judicial Magistrate, First Class, Akot. The applicants are permitted to verify the application in accordance with the provisions of Order 6, Rule 15 of the Code of Civil Procedure, 1908. The learned Magistrate is directed to decide the said Misc. Criminal Application Case No. 146 of 1998 in accordance with law after giving due opportunity to both the parties. The respondent No. 1 is permitted to raise grievances by way of Written Statement and/or additional Written Statement which shall be considered by the learned Magistrate. Rule made absolute in the above terms. No costs.