Delhi High Court

Jagmohan Arora vs Saroj Arora on 8 July, 2011

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    Crl. M.C. No. 377/2010 & Crl. M.A. 1296/2010

%                                            Reserved on:18th May, 2011

                                             Decided on: 8th July, 2011


JAGMOHAN ARORA                                             ..... Petitioner
                              Through:    Ms. Purnima Maheshwari, Advocate

                          versus

SAROJ ARORA                                                  ..... Respondents
                              Through:    Mr.D.K. Kaushik, Adv. for Respondent
                                          Mr. Manoj Ohri, OPP for the State with
                                          Mr. V. Maindola, SI PS Bhajanpura.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may          Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported            Yes
   in the Digest?

MUKTA GUPTA, J.

1. The issue that arises for consideration in the present petition is whether

the learned Metropolitan Magistrate has the jurisdiction to recall/review its

order of dismissal of the complaint under Section 125 Cr.P.C. in default of

appearance and non-prosecution.

2. The facts in a nutshell are that a complaint under Section 125 Cr.P.C.

seeking maintenance was filed by the Respondent who is the wife of the

Petitioner. The learned Metropolitan Magistrate vide its order dated 5 th

February, 2008 directed the Petitioner to pay a monthly maintenance of Rs.

1000/- to the Respondent which the Petitioner duly paid till 30th March, 2009

when the complaint case No.218/2007 was dismissed for non-prosecution as

the Complainant/Respondent failed to appear. The Respondent thereafter

filed an application for restoration of the petition accompanied by the affidavit

of the learned counsel. On the said application, the learned Metropolitan

Magistrate recalled its order. Vide the impugned order dated 17th December,

2009 restored the complaint to its original position subject to a cost of

Rs.300/-.

3. Learned counsel for the Petitioner contends that the impugned order

dated 17th December, 2009 recalling the order dated 30th March, 2009

dismissing the complaint for non-prosecution is contrary to the law laid-down

by the Hon'ble Supreme Court in Adalat Prasad vs. Rooplal Jindal & Ors.,

(2004) 7 SCC 338. It is urged that even though proceedings under Section

125 Cr.P.C. relate to the right of the wife/child/parent to claim maintenance is

essentially a civil right but the procedure to be followed for adjudication of

the said right is as per the Code of Criminal Procedure, 1973. Moreover, the

non-compliance of an order passed under Section 125 Cr.P.C. entails penal

action i.e. imprisonment. There is no provision in the Code of Criminal

Procedure empowering a Magistrate to review/recall its order. While dealing

with the proceedings under Section 125 Cr.P.C., the Magistrate is bound by

the procedure prescribed under the Cr.P.C. In case of dismissal of a

complaint by the Magistrate, the remedy lies by approaching the superior

court by way of a petition under Section 482 Cr.P.C. or in revisional

jurisdiction. The procedure prescribed is a summary procedure as prescribed

for summons cases and the same is circumscribed by the Code of Criminal

Procedure, 1973. An order of dismissal of the complaint under Section 125

Cr.P.C. is in the form of termination of the complaint and thus is in the nature

of termination of a complaint case. The law laid-down by the hon'ble

Supreme Court in Adalat Prasad(supra) is reiterated in Subramanium

Sethuraman vs. State of Maharashtra & Anr., 2004 Crl. L.J. 4609; N.K.

Sharma vs. Abhimanyu, 2005 Crl. L.J. 4529; Everest Advertising Pvt. Ltd. Vs.

State, GNCTD, 2007 Crl.L.J. 2442; Dinesh Dalmia vs. CBI, 2008 Crl. L.J.

337 and Dharmeshbhai Vasudevbhai & Ors., 2009 Crl. L.J. 2969.

4. Learned counsel for the Respondent on the other hand contends that the

provisions under Section 125 Cr.P.C. relate to a different realm of jurisdiction.

Section 127 Cr.P.C. itself permits alteration of an order passed under Section

125 Cr.P.C. thus giving the power of review/recall to the learned Metropolitan

Magistrate. He relies upon the decisions in Iqbal Bano vs. State of U.P. &

Anr. AIR 2007 SC 2215; Smt. Prema Jain vs. Sudhir Kumar Jain, 1980 Crl.

L.J. 80; Suhird Kamra vs. Smt. Neeta & Anr., 1988 (14) DRJ 283. According

to him, the bar prescribed under Section 362 Cr. P.C. does not extend to a case

of dismissal for non-prosecution as no judgment or final order on merits is

passed.

5. I have heard learned counsel for the parties at length. In Adalat

Prasad(supra) and other decisions relied upon by the learned counsel for the

Petitioner, the Hon'ble Supreme Court was dealing with orders recalling the

issuance of process for offences under the penal Statutes. Their Lordship's

held that in the absence of any power of review or inherent power with

subordinate courts, the remedy lies in invoking Section 482 Cr.P.C. In a case

where the dismissal of the complaint would amount to discharging the

accused, a revision against the same would lie and in a case where the

dismissal of the complaint amounts to acquittal of the accused an appeal or a

leave to appeal against the acquittal would be the remedy open to the

Complainant. Learned counsel for the Petitioner has strenuously relied upon

Adalat Prasad (supra) to contend that the Magistrate has no power to recall

an erroneous order and the same is without jurisdiction. It may be noted that

in Adalat Prasad, their Lordships were dealing with complaint under Sections

120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of IPC.

6. Section 127 Cr.P.C. provides that on proof of a change in the

circumstances of any person receiving a monthly allowance for the

maintenance or interim maintenance or order under Section 125 Cr.P.C. the

Magistrate may make such alterations as he thinks fit in the allowance of the

maintenance or interim maintenance. Under sub-Section 2 of Section 127

Cr.P.C., the Magistrate has been conferred with the jurisdiction that in

consequence of any decision of a competent civil court any order passed

under Section 125 should be cancelled or varied. Thus, the Code permits

varying i.e. recalling of its earlier decision by the learned Metropolitan

Magistrate in certain contingencies. Thus, the scheme of Chapter IX of the

Code shows that the Magistrate does not become functus officio after passing

an order under Section 125 Cr.P.C.

7. A perusal of Chapter IX shows that Section 125 provides for orders that

a Criminal Court can pass for maintenance of the wife, children and parents in

case a person having sufficient means neglects or refuses to pay maintenance.

Section 126 provides for the procedure to be followed. Section 127 vests the

Court with the power to alter the allowances in case of change of

circumstances. Thus, impliedly any order passed under Section 125 Cr.P.C. is

not a final order and can be amended, altered or recalled by the trial Court

with the change of circumstance. There is also no bar that after dismissal for

non-prosecution of an application under Section 125 Cr.P.C., an applicant

cannot file a second application. The only loss would be that the applicant

would be entitled for maintenance from the date of subsequent application

filed. Thus, the scheme of Code itself shows that there is no bar for the

Magistrate to amend or recall his order. The proceedings under Section 125

Cr.P.C. are essentially civil in nature, though the criminal process is applied

for the purpose of summary and speedy disposal of such matters in the interest

of the society. Thus, the proceedings under Section 125 Cr.P.C. which

determine the civil rights of the parties in an expeditious manner under the

Cr.P.C.cannot be equated with the proceedings of a complaint case as the

latter are for the purpose of fact finding of complicity in the commission of a

criminal offence. This being the position, to my mind, the decision rendered

in the case of Adalat Prasad (supra) would have no application to a case

under Section 125 Cr.P.C.

8. This Court in Prema Jain (supra) held that the order dismissing an

application for maintenance in default of appearance is in the nature of an

administrative order rather than a judicial one and the Magistrate has power to

set aside and restore the application. The issue whether the order of dismissal

for non-prosecution is administrative in nature was repelled by the Division

Bench of Guwahati High Court in Murti Dhar Singh & Ors. Vs. Vijendra

Singh Jafa, 2002(3) GLT 453. Though an order for dismissal of the complaint

for default is not an order on merit and does not adjudicates the lis between

the parties finally, however, such an order is also not an administrative order.

It is a judicial order terminating the application and thus a final order to that

extent.

9. In Smt. Savitri w/o Govind Singh Rawat v. Govind Singh Rawat, AIR

1986 SC 984, the Hon'ble Supreme Court held that though there was no

specific provision under the Cr.P.C. to allow grant of interim maintenance,

however, such a power is implicit under Section 125 of the Cr.P.C. It was

held that the jurisdiction of a Magistrate under Chapter IX of the Code is not

strictly a criminal jurisdiction. While passing an order under that Chapter

asking a person to pay maintenance to his wife, children or parents, as the

case may be, the Magistrate is not imposing any punishment for a crime

committed by him. Chapter IX of the Code contains a summary remedy for

securing some reasonable sum by way of maintenance, subject to a decree, if

any, which may be made in a civil Court in a given case provided the Personal

Law applicable to the person concerned authorizes the enforcement of any

such right to maintenance. The Code, however, provides a quick remedy to

protect the applicant against starvation and to tide over immediate difficulties.

It was held that it is the duty of the Court to interpret the provisions in Chapter

IX of the Code in such a way that the construction placed on them would not

defeat the very purpose of the legislation. Thus, in the absence of any express

prohibition, it was appropriate to construe the provisions in Chapter IX as

conferring an implied power on the Magistrate to direct a person against

whom an application is made under Section 125 of the Code to pay some

reasonable sum by way of maintenance to the applicant pending final disposal

of the application.

10. In view of the absence of any express prohibition under Chapter IX in

my opinion there is no bar on the Court to recall its order dismissing an

application under Section 125 Cr.P.C. His Lordships' J.R. Mudholkar, J. in

State of Uttar Pradesh v. Bhagwant Kishore Joshi, AIR 1964 SC 221 : while

dealing with the permissibility of a preliminary enquiry prior to registration of

FIR held:

"In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it."

11. The Bombay High Court in Sau. Mandakini B. Pagire v. Bhausaheb

Genu Pagire and another, 2009 Crl. L.J. 70, came to the same conclusion.

Referring of Section 362 of Cr.P.C., the Court held that the recalling of

dismissal order cannot be treated as an alteration or change in the judgment or

final order. Once it is found that the Criminal Court has inherent power to

grant interim allowance to the wife under Section 125 Cr.P.C. then it follows

that exercise of such inherent powers can be done for settling right the wrong.

The principle "ubi-jus-ibi-remedium" is attracted in such a case.

12. In Kehari Singh v. State of U.P. and another, 2005 Crl. L.J. 2330, it

was held that people in such miserable conditions due to unavoidable

conditions may not be able to attend the Court proceedings on every date

fixed there to pursue their cases. In such situations, if it is held that the Court