Delhi High Court
Tajinder Pal Singh vs State & Ors on 24 April, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. 1396/2012 with Crl. M.A. No. 4935-4936/2012
Date of Decision: 24.04.2012
TAJINDER PAL SINGH ..... Petitioner
Through Mr. S.K. Srivastava, Advocate.
Versus
STATE & ORS ..... Respondent
Through Ms Fizani Husain, APP
CORAM:
HON'BLE MR. JUSTICE M.L.MEHTA
ORDER
% 24.04.2012
M.L. MEHTA, J. (Oral)
1. This is a petition under section 482 Cr. P.C. seeking quashing of
order dated 07.12.2011 passed by the MM, Mahila Court (East) whereby
the application filed by respondent No.2 and her son Master Daljeet
Singh, respondent No. 3, for restoration of their petition under section
125 Cr. P.C., which was dismissed in default, was allowed and the
petition was restored.
2. The impugned order of the learned MM, Mahila Court has been
assailed mainly on two grounds. Firstly, that the Magistrate has no
power to review or recall its own order of dismissal of complaint on
account of non-appearance of the complainant in view of section 256
and 362 of Code of Criminal Procedure and secondly, that in any case,
there was no justifiable ground for restoration of the petition after 21
months of its dismissal in default.
3. I have heard learned counsel for the petitioner.
4. With regard to the first submission, it may be noted that the
provisions of section 256 Cr. P.C. are not attracted in the case of
dismissal of a petition under section 125 Cr. P.C. Though such petitions
are termed as complaints, but, the respondents in these petitions are not
treated as accused. Section 256 Cr. P.C. stands attracted when
complainant fails to appear and no reason is given for adjourning the
case and only then the Magistrate is empowered to dismiss the
complaint in default and resultantly acquit the accused. Even such
power was subject to proviso which further empowers the Magistrate to
dispense the attendance of the complainant through Advocate or
authorized representative if the nature and the stage of the case appear to
be so demanding.
5. It is true that the complaint dismissed in default cannot be
restored by the Magistrate under the provisions of Cr.P.C. as there is no
specific provision of such eventuality. However, it is trite that
proceedings for maintenance under section 125 Cr. P.C. are of the
nature of civil proceedings though the criminal process is applied for the
purpose of summary and speedy disposal of such matters. In fact, such
proceedings can be termed to be that of hybrid character. It is
understood that exercise of inherent power can be done for setting right
the wrong with the applicability of 'ubi jus ibi remedium'. The
provisions of section 125 Cr. P.C. cannot be compared with the
proceedings of a complaint case since the former proceedings are not for
the purpose of fact finding of complicity in a criminal case, but is to
decide a civil right of the complainant/petitioner through the process of
Criminal Procedure Code. In the case of Smt. Prema Jain Vs. Sudhir
Kumar Jain, 1980 Cri. L. J. 80, the Single Judge Bench of this Court
held that restoration application in such a case is maintainable because
the dismissal was administrative in nature rather than a judicial one. The
learned Single Judge held that the Magistrate has power to set aside
dismissal order and restore the proceedings under section 125 of the
Criminal Procedure Code. While agreeing with the learned Single
Judge with regard to the power of the Magistrate to set aside the
dismissal order and to restore the proceedings under section 125 Cr.
P.C., I have not been able to persuade myself to certain observations in
the said case in regard to the nature of order rendered in respect of the
dismissal. The dismissal order cannot be regarded as administrative
one. A Divison bench of Punjab and Haryana High Court in Smt.
Kamla Devi and others vs. Mehma Singh, 1989 Cri. L.J., 1866 also
held that Magistrate can order restoration of the petition on sufficient
cause being shown as proceedings under section 125 Cr. P.C. are civil in
nature. The Division Bench also observed that in a way the provisions in
Chapter_IX of the Criminal Procedure Code constitute a Code of
Procedure by itself.
6. So far as the provisions of section 362 Cr. P.C. are concerned, it
may be mentioned that the prohibition imposed is to the extent of
impermissibility pertaining to alteration of judgment or final order. The
recalling of dismissal order cannot be treated as alteration in the
judgment or order.
7. The learned MM in the order has recorded that the respondents
had filed four execution petitions for recovery of interim maintenance
wherein she was regularly appearing and she remained under the
impression that the present main petition was also being listed along
with those execution petitions. The explanation given by the
respondents in this regard was found to be plausible and acceptable from
the record that they were appearing in those execution petitions
regularly. Based on this fact situation, the learned MM recorded that no
malafide intention could be imputed to the respondents for not
appearing in the present case. Based on all this premise, the application
for restoration was allowed subject to payment of cost.
8. I do not see any illegality or infirmity in the discretion exercised
by the learned Magistrate in restoring the petition.
9. In view of my above discussion, this petition has no merit and is
hereby dismissed in limini.
M.L.MEHTA, J
APRIL 24, 2012
awanish
