C482/360/2023
2023 Latest Caselaw 522 UK

               Office Notes, reports,
SL.           orders or proceedings or
      Date                                               COURT'S OR JUDGES'S ORDERS
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               order with Signatures


                                          C-482 No. 360 of 2023

                                          Hon'ble Sharad Kumar Sharma, J.

Mr. Narendra Bali, Advocate for the applicant.

Mr. Pratiroop Pandey, A.G.A. for the State.

` In a proceedings under Section 125 of the Cr.P.C. as it instituted by Smt. Anshul Chauhan, the opposite party to the proceedings have filed an application seeking an amendment in the objection filed to the application. But, however, the application which has been filed by the applicant before the learned Family Court, Haridwar in Case No. 166 of 2021 had been preferred by virtue of invoking the provisions contained under Order 6 Rule 17 to be read with Section 151 of CPC, the said application which has been rejected by the Family Court while exercising its ambit of powers provided under criminal jurisdiction.

The issue would be as to whether at all, there could be an overlapping of a procedural law by attracting the provisions contained under Order 6 Rule 17 to be read with Section 151 of CPC for the purposes of seeking of an amendment in a proceedings under Section 125, which is exclusively criminal in nature. The said application has been rejected by the learned Family Court by the impugned order dated 01.12.2022.

This Court feels it necessary to clarify that while dealing with this aspect about the maintainability of the application under Order 6 Rule 17 to be read with Section 151 of the CPC, this Court may not be construed to have ventured into the propriety of the amendment and its necessity under the given act of circumstances.

This Court is of the considered view, that there cannot be an inter-mingling of the procedural law in a proceedings held under the criminal law by attracting the provisions of the Code of Civil Procedure, which would not apply to govern the procedure, as contemplated under the Cr.P.C.

The counsel for the applicant has submitted that in a judgment reported in (1990) SCC Online Ori 433, Sabita Sahoo Vs. Capt. Khrod Kumar Sahoo, the coordinate bench of the Orissa High Court had rather observed almost under a similar circumstances that though the application under Order 6 Rule 17 to be read with Section 151 in the proceedings under Section 125, since not being a civil proceedings and being governed by the provision contained under the Code of Criminal Procedure, will not make any provision enabling the Magistrate to permit an amendment application in a proceedings under Section 125. The relevant paragraph is extracted hereunder;

"4. From the discussions in the impugned order it is evident that, the said ground for rejection of the prayer for amendment of the application under Section 125, Cr.P.C. was that Order 6, Rule 17, C.P.C. has no application to the proceeding under Section 125, Cr.P.C., since it was not a proceeding of civil nature and the Criminal Procedure Code makes no provision enabling the Magistrate to permit amendment of the application under Section 125, Cr.P.C. The learned Magistrate relied on the decision of this Court in the case of Norbet Kispatta v. Mst. Tersa Kerketa, reported in 1971 Criminal Law Journal 1496."

The learned counsel for the applicant has drawn the attention of this Court to paragraph 8 of the said judgment of the Orissa High Court, wherein, the coordinate bench of the Orissa High Court has observed that though the application under Order 6, Rule 17 to be read with Section 151 of the CPC, may not be made applicable under the proceedings which are being conducted under the provisions of the Cr.P.C., but, still the Court while exercising its powers under Section 482, can still exercise its inherent power to meet out the ends of justice with all due reverence at my command and with all humility, I beg to differ with the view taken by the coordinate bench. The invocation of powers under Section 482 of the Cr.P.C does not envisages to create a wrong preceding or to override the certain principles of law, which happens to be contrary to the own provisions drawn by the coordinate bench of Orissa High Court. Rather, the observation made in paragraph 5, if it is read in harmony with paragraph 8 and 9 of the said judgment, they are in contradiction to one another. The invoking of powers to permit an amendment in the said case have been under Section 482 and not under Order 6 Rule 17 to be read with Section 151. Since, the application preferred by the applicant was not tenable under Order 6 Rule 17 to be read with Section 151 as per the judgment of Sabita Sahu (supra) would not apply.

The 482 application is hereby dismissed with the liberty left open for the applicant to file a fresh amendment application as per the law applicable governing the criminal procedure and file an appropriate application for amendment, in accordance with law.

(Sharad Kumar Sharma, J.)

27.02.2023 Ujjwal