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The Code Of Criminal Procedure, 1973
Section 125 in The Code Of Criminal Procedure, 1973
The Indian Penal Code
Jagir Kaur & Another vs Jaswant Singh on 13 February, 1963
Section 95 in The Code Of Criminal Procedure, 1973

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Calcutta High Court
Sk. Alauddin @ Alai Khan vs Khadiza Bibi @ Mst. Khodeja Khatun ... on 5 December, 1990
Equivalent citations: 1991 CriLJ 2035, I (1992) DMC 268
Author: S P Rajkhowa
Bench: S P Rajkhowa

JUDGMENT

Siba Prasad Rajkhowa, J.

1. This revisional application is directed against the order dated 11-1-89 passed by the learned Sub-Divisional Judicial Magistrate, Burdwan in Misc. Case No. 46/87 allowing restoration of the Misc. Case to its original number and setting aside the order dated 26-4-88.

2. The proceeding is one under Section 125 of Criminial Procedure Code. On 26-4-88 the petitioner/wife was absent without taking any step and so the learned Magistrate ordered that the Misc. Case be filed. On 30-4-88 the wife filed a petition praying for restoration of the case stating the grounds therein. Having heard both sides, by the impugned order dated 11-1-89, the learned Magistrate allowed the petition and restord the Misc. Case to file and fixed 22-2-89 for hearing.

3. The only point for consideration is whether the learned Magistrate has the jurisdiction to restore the proceeding under Section 125, Cr.P.C. to file once it is dismissed for default.

4. The learned Counsel for the petitioner has submitted that the Criminal Court has no jurisdiction to restore a proceeding which has been dismissed for default. The learned Counsel submitted, as per provision of Section 362 of the Cr.P.C, the Criminal Court cannot alter or review the judgment or final order disposing of a case except to correct a clerical or arithmetical error. In support of his contention, he has relied upon the decisions reported in (1) . Bindeshwari Prasad v. Kali Singh; , Major Gen. A S. Gauraya v. S.N. Thakur, 1987 (1) Crimes, 330 (Orl), Ramesh Samal v. Chabi Mondal and other; , Smt. Harbhajan Kaur v. Major Sant Singh. In the case of Bindeshwari Prasad the Supreme Court held that there is no provision in the Code of Criminal Procedure empowering a Magistrate to review or recall an order passed by him and that this Code does not contain a provision for inherent powers like that of the Civil Court under Section 151 of the Code of Civil Procedure This view of the Supreme Court was echoed in the case of Major Gen. A.S. Gauraya. The ratio of the above two cases was followed by Orissa High Court in Ramesh Samal's case. In Smt. Harbhajan Kaur's case it was held that proceedings under Section 488 of the Code of Criminal Procedure (1898) are criminal and not civil proceedings. Section 488 of the old Code corresponds to Section 125 of the new Code. Relying on this decision of the Delhi High Court the learned Counsel submits that a proceeding under Section 125, Cr.P.C. being of a criminal nature, the impugned order of recall passed by the learned Magistrate is without jurisdiction as the learned Magistrate is not competent to recall his order finally disposing a case under the Code.

5. On the other hand the learned Counsel for the opposite party has submitted that a proceeding under Section 125, Cr.P.C. is in the nature of civil proceeding unlike other criminal proceeding and a Magistrate is competent to review or recall his order disposing of a proceeding under the Section. He has drawn support from a decision of the Punjab and Haryana High Court in Smt. Kamala Devi v. Mehma Singh, reported in 1989 Cri.L.J. 1866 (P & H). In this reported case it was held that a Magistrate can order restoration of an application dismissed for default on sufficient cause being shown in a proceeding under Section 125, Cr.P.C. and the view taken by that High Court is that proceedings under Section 125, Cr.P.C. are Civil in nature.

5. Judicial pronouncements of not too distant past indicate that the proceedings for maintenance are in the nature of civil proceedings though the criminal process is applied for the purpose of summary and speedy disposal of such matter in the interest of society. A reference may be made to the decision of the Supreme Court in Mst. Jagir Kaur v. Jaswant Singh, . There is no conflict between the decisions of the Supreme Court in Bindeshwari's case and Gaurya's case on the one hand and the decision in Jagir Kaur's case on the other hand. In Bindeshwari's case there was a complaint in which commission of an offence under Section 95 of the Penal Code was alleged. In Gauraya's case also there was a complaint disclosing an offence punishable under Sections 67 and 72C(l)(a) of the Mines Act, 1952. Unquestionably, these two were criminal proceedings. Whereas the proceeding in Jagir Kaur's case was a proceeding under Section 488 of the Code of Criminal Procedure (old) which corresponds to Section 125, Cr.P.C. (new).

7. It is to be borne in mind that a petition filed under Section 125, Cr.P.C. is not a complaint and the person who is arrayed as the opposite party is not an accused.

8. Following the decision of the Supreme Court as (supra), I hold that the instant proceedings before me under Section 125, Cr.P.C. is a proceeding of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing a proceeding of this nature provided sufficient grounds are shown.

9. In the result, I do not find any Illegality in the impugned order and as such this revisional application stands rejected.