Telangana High Court
Golla Gopal vs M. Swathi on 20 August, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.8125 OF 2023
ORDER:
This Criminal Petition is filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.') praying the Court to
quash the order dated 20.07.2024 passed in Crl.MP.No.41 of 2023 in
MC.No.21 of 2017 on the file of the Family Court-cum-III Additional
District and Sessions Judge, Mahabubnagar.
2. The said Crl.MP., was filed by the respondent Nos.1 and 2
herein under Order VI Rule 17 of C.P.C., praying to permit them to
amend or alter claim of maintenance from Rs.15,000/- per month to
Rs.20,000/- per month to each, towards maintenance, from the date
of petition, and Rs.50,000/- towards legal expenses. The said
Crl.MP., was allowed vide order dated 20.07.2024 permitting the
respondent Nos.1 and 2 herein to amend the maintenance case and
also for consequential amendments sought for by them and for
carrying out amendment and to file neat copy of the same.
3. Aggrieved thereby, the petitioner who is respondent in the said
Crl.MP., filed this petition praying to quash the said order.
4. Heard Sri Karnam Ramesh, learned counsel for petitioner, Sri
S.Ganesh, learned Assistant Public Prosecutor, appearing for
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respondent No.1 - State, and Sri M.Achuta Reddy, learned counsel
for respondent No.2.
5. Learned counsel for petitioner submitted that the order passed
by the trial Court in a petition filed under Order VI Rule 17 of C.P.C.,
permitting the respondents to amend the maintenance petition filed
under Section 125 of Cr.P.C., is contrary to Section 10(1) and (2) of
the Family Courts Act, 1984 (for short 'Act 1984'). He contended that
the impugned order is contrary to the procedure contemplated under
Sections 125 to 128 as the Chapter IX of the Cr.P.C., containing the
provision of alteration in allowance itself is a scheme containing the
procedure under which all the application, substantial and corollary
shall be considered and any travel beyond the said scheme would be
without jurisdiction. He asserted that the appropriate provision for
alteration in allowance can be made only under Section 127 of
Cr.P.C., and not under any other provision.
6. In addition to the above, learned counsel for the petitioner
contended that the trial Court ought to have seen that the
maintenance case filed by the respondents was dismissed with
respect to respondent No.1 and allowed granting Rs.5000/- in
respondent of respondent No.2 vide order dated 03.01.2019 and
aggrieved by the same, Cr.R.C.No.173 of 2019 was filed which was
disposed of vide order dated 20.12.2022 remanding the matter to the
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trial Court with a direction to dispose of same afresh by following the
procedure contemplated under Section 126 of Cr.P.C., for recording
evidence in view of the fact that earlier disposal was made basing on
the evidence and affidavits filed by the parties, as such, the scope of
remand cannot be enlarged and respondents cannot be permitted to
amend the maintenance case.
7. Learned counsel for petitioner incessantly contended that the
trial Court has misapplied Section 10(3) of the Act, 1984 in order to
adopt the procedure contemplated under Order VI Rule 17 of C.P.C.,
and erred in allowing the petition. He lamented that the trial Court
ought to have seen that when a specific provision relating to
alteration or amendment of maintenance is contemplated under
Section 127 of Cr.P.C., applying Order VI Rule 17 would be without
jurisdiction, particularly when Clause-II of Section 10 of the Act,
1984 mandates that procedure contemplated under Cr.P.C., or the
Rules made there under shall be applied to the proceedings under
Chapter IX of Cr.P.C., even before a Family Court.
8. In support of the above contentions, the learned counsel for
petitioner relied on the judgment of the High Court of Andhra
Pradesh reported in 2020 (2) ALT (Criminal) 131 whereunder, a
specific provision was contemplated under Cr.P.C., for specific
purpose of application of any other provision for the said purpose
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even to the Family Courts is impermissible. Therefore, prayed this
Court to quash the order dated 20.07.2024 passed in Crl.MP.No.41
of 2023 in MC.No.21 of 2017.
9. On the other hand, the learned counsel for respondents
submitted that there is no illegality in the order passed by the trial
Court in Crl.MP.No.41 of 2023 in MC.No.21 of 2017 permitting the
respondents to amend the maintenance petition filed by them.
Therefore, prayed this Court to dismiss the Criminal Petition, as the
same lacks merits.
10. Having regard to the rival submissions made and on going
through the material placed on record, it is noted that the contention
of learned counsel for petitioner is that the trial Court erred in
allowing a petition filed under Order VI Rule 17 of C.P.C., permitting
the respondents to amend the maintenance petition filed under
Section 125 of Cr.P.C., as the same is contrary to Section 10(1) and
(2) of the Act 1984 and that the same cannot be applicable as per
Chapter IX of the Cr.P.C., whereas, it is seen that the trial Court has
allowed the said petition by applying the provisions contemplated
under Section 10 clause (3) of the Act, 1984. That being so, it is to be
seen whether Section 125 of Cr.P.C., covered by Chapter IX of
Cr.P.C., is applicable in petition filed under Order VI Rule 17 of
C.P.C.
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11. At this stage, it is pertinent to note that in the judgment
rendered by the High Court of Andhra Pradesh in Veerisetty
Ramesh Babu Vs. Veerisetty Ramadevi 1, the judgment of the
Division Bench of Bombay High Court in the case of K.V.More, 3d Jt.
Civil Judge (JD) & JMFC, Pune, Baramati District Vs. State of
Maharashtra was discussed at length, and in paragraph No.21
observed that "..in the case of VD.Solomon Vs. V.Solomon Mary
held that the evidence in proceedings under Section 125 of Cr.P.C.,
has to be recorded in the Court in view of Section 126(2) Cr.P.C., and
evidence cannot be taken in the form of evidence affidavit. Relying on
the said judgment, the common High Court of Judicature at
Hyderabad for the State of Telangana and the State of Andhra
Pradesh in Gollamudi Ramesh Vs. Modukuri Nagamani held that
evidence in the proceedings under Section 125 Cr.P.C., has to be
recorded by the Court as per the procedure prescribed under Section
126(2) Cr.P.C.
12. Further, in the case of Kunapareddy @ Nookala Shanka
Balaji Vs. Kunapareddy Swarna Kumari and Another 2 the Hon'ble
Supreme Court discussed in detail whether a Court dealing with the
petition/complaint filed under the provisions of the Protection of
Women from Domestic Violence Act, 2005 (for short 'DV Act') has
2020 (2) ALD (Crl.) 315 (AP)
2016 11 SCC 744
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power to allow amendment to the petition/complaint originally filed
and the factual background of the above case was with regard to
petition/complaint filed by wife, wherein, the respondent No.1 is the
wife of the appellant, has filed a case against the appellant and his
family members before the Court of IInd Additional Judicial First
Class Magistrate, West Godavari, Eluru, whereunder, the
amendment petition filed by the wife was partly allowed, against
which the husband filed appeal before the Hon'ble Supreme Court.
The relevant paragraph Nos.18 and 19 read as under:
"18. In this context, provisions of sub-section (2) of
Section 28 of the DV Act gain significance. Whereas
proceedings under certain sections of the DV Act as
specified in sub-section (1) of Section 28 are to be
governed by the Code, the legislature at the same time
incorporated the provisions like sub-section (2) as well
which empowers the court to lay down its own
procedure for disposal of the application under
Section 12 or Section 23(2) of the DV Act. This
provision has been incorporated by the legislature
keeping a definite purpose in mind. Under Section 12,
an application can be made to a Magistrate by an
aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person to claim one
or more reliefs under the said Act. Section 23 deals
with the power of the Magistrate to grant interim and
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ex parte orders and sub-section (2) of Section 23 is a
special provision carved out in this behalf which is as
follows:
"23.(2) If the Magistrate is satisfied that an
application prima facie discloses that the respondent
is committing, or has committed an act of domestic
violence or that there is a likelihood that the
respondent may commit an act of domestic violence,
he may grant an ex parte order on the basis of the
affidavit in such form, as may be prescribed, of the
aggrieved person under Section 18, Section 19,
Section 20, Section 21 or, as the case may be, Section
22 against the respondent."
19. The reliefs that can be granted by the final order
or by an interim order, have already been pointed out
above wherein it is noticed that most of these reliefs
are of civil nature. If the power to amend the
complaint/application, etc. is not read into the
aforesaid provision, the very purpose which the Act
attempts to subserve itself may be defeated in many
cases."
13. Furthermore, in the case of S.R. Sukumar Vs. S.Sunaad
Raghuram 3 in paragraph Nos.19 and 20 it is held as follows:
(2015) 9 SCC 609
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"18. Insofar as merits of the contention regarding
allowing of amendment application is concerned, it is
true that there is no specific provision in the Code to
amend either a complaint or a petition filed under the
provisions of the Code, but the courts have held that
the petitions seeking such amendment to correct
curable infirmities can be allowed even in respect of
complaints. In U.P. Pollution Control Board v. Modi
Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632]
wherein the name of the company was wrongly
mentioned in the complaint, that is, instead of Modi
Industries Ltd. the name of the company was
mentioned as Modi Distillery and the name was
sought to be amended. In such factual background,
this Court has held as follows: (SCC pp. 659-60, para
6)
"6. ...The learned Single Judge has focussed his
attention only on the technical flaw in the complaint
and has failed to comprehend that the flaw had
occurred due to the recalcitrant attitude of Modi
Distillery and furthermore the infirmity is one which
could be easily removed by having the matter remitted
to the Chief Judicial Magistrate with a direction to call
upon the appellant to make the formal amendments
to the averments contained in Para 2 of the complaint
so as to make the controlling company of the
industrial unit figure as the accused concerned in the
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complaint. All that has to be done is the making of a
formal application for amendment by the appellant for
leave to amend by substituting the name of Modi
Industries Limited, the company owning the
industrial unit, in place of Modi Distillery. ...
Furthermore, the legal infirmity is of such a nature
which could be easily cured."
19. What is discernible from U.P. Pollution Control
Board case [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] is
that an easily curable legal infirmity could be cured
by means of a formal application for amendment. If
the amendment sought to be made relates to a simple
infirmity which is curable by means of a formal
amendment and by allowing such amendment, no
prejudice could be caused to the other side,
notwithstanding the fact that there is no enabling
provision in the Code for entertaining such
amendment, the court may permit such an
amendment to be made. On the contrary, if the
amendment sought to be made in the complaint does
not relate either to a curable infirmity or the same
cannot be corrected by a formal amendment or if
there is likelihood of prejudice to the other side, then
the court shall not allow such amendment in the
complaint."
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14. Reverting to the facts of the case on hand, it is seen that the
trial Court allowed Crl.MP.No.41 of 2023 in MC.No.21 of 2017 vide
order dated 20.07.2024 permitting the respondents herein to amend
the petition filed under Order VI Rule 17 of C.P.C., to the extent of
amending the amount of maintenance as claimed. There is no
dispute that petitioner can file the petition for enhancement of
amount awarded under Section 126 Cr.P.C., whereas, in the present
case, originally, the petitioner was disposed of on 03.01.2019 against
which the petitioner filed Cr.R.C.No.173 of 2019 and the same was
disposed of on 20.12.2022 remanding the matter with a direction to
dispose of the same afresh. Therefore, there is time gap of five years
from the date of order and at present, the Court is conducting the
trial of the petitioner filed in the year 2019. Therefore, amendment in
the amount is justified in view of special circumstances in this case
and the same will not cause any prejudice to the petitioner as he can
file his defense in this case.
15. In view of the above discussion and having regard to the facts
of the case, this Court is of the opinion that mere amending the
amount of maintenance claimed would not cause any prejudice to
petitioner and that there is no illegality in the order of the trial Court
dated 20.07.2024 made in Crl.MP.No.41 of 2023 in MC.No.21 of
2017 and this criminal petition is liable to be dismissed.
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16. Accordingly, the Criminal Petition is dismissed.
Miscellaneous applications, if any pending, shall also stand
closed.
_______________
K. SUJANA, J
Date: 20.08.2024
PT
