M.S Joshi, J.:— Prema Jain filed a petition under section 125 of the Code of Criminal Procedure, 1973, for the award of maintenance allowance against her husband Sudhir Kumar Jain on 29-1-1976. The said petition was dismissed by the Metropolitan Magistrate concerned because of her non-appearance on 16-7-1976. Her counsel preferred an application for the restoration of the said petition on 19-7-1976 but it was dismissed on 20-10-1976 for the technical reason it had been signed by her Advocate and not by Prema Jain herself. She filed, therefore, another application on 27-10-1976 for the restoration of the original petition and it was granted by Shri H.P Sharma, Metropolitan Magistrate on 27-1-1977. The learned Magistrate observed that there was no law to prohibit filing of restoration application; there was no intentional lapse on the part of the applicant and she could not be penalised for a minor lapse of her counsel and that too when the Court was not functioning in a regular form because of quick transfers and its office was working at two different places giving rise to confusion. He ordered payment by her of Rs. 50 as penalty and the amount was readinly accepted by the counsel for the other side.
2. The respondent moved the Court of Session, however, for a revision of the order of the learned Metropolitan Magistrate dated 27-1-1977 on the ground he had no power inherent or otherwise to review his own order dismissing the petition for default. His plea prevailed with Shri V.B Bansal, Additional Sessions Judge, and holding that the Magistrate's order was without jurisdiction and beyond the scope of the Code of Criminal Procedure he set aside the same. Prema Jain has now approached this Court with a petition to avoid the damage done by the order of the first revisional court.
3. The learned Additional Sessions Judge has observed that the proceedings under section 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the ‘New Code’) were criminal in nature and found support for this view from Smt. Harbhajan Kaur…Petitioner v. Major Sant Singh… (A.I.R 1969 Delhi 298) (1). He has held that the Magistrate was incompetent to recall his order and relied in this behalf on Sankatha Singh and others v. State of Uttar Pradesh (A.I.R 1962 S.C 1208) (2) and Babu Ram v. Ramji Lal and others (A.I.R 1964 Punjab 444) (3).
4. The first issue raised before me is concerned with the nature of a maintenance matter. Shri Maheshwar Daya has urged that the proceedings pursuant to a petition under section 125 of the New Code are criminal proceedings and as such an order of their restoration cannot be passed like an order under Order 9 of the Code of Civil Procedure. But his reliance in this behalf on Ashish… v. D.C Tewari…. (1969 D.L.T 693) (4) is misconceived. In that case Chief Justice I.D Dua (as his Lordship than was) observed, of course, that he must not be understood to equate proceedings under section 488 Criminal Procedure Code 1898 (hereinafter referred to as the ‘Old Code’) with a regular civil suit for maintenance, but he hastened to add, ‘it is obvious from the statutory scheme of Chapter XXXVI of the Code that these provisions are relatively summary, designed to afford urgent relief to the needy, neglected wife and child to a limited extent through the Courts of Magistrate’. It could not possibly have been meant by his lordship to say that the petitioning party might be shown the door for a minor lapse.
5. The case reported in Bhagwan Singh v. Mst. Gurnam Kaur and another (1966 P.L.R 127) (5) was under section 488 of the old code and the learned Judge disposing of the same held that an order dismissing a petition for maintenance for default of petitioner's appearance could not subsequently be set aside by the Magistrate himself. But the learned Judge took the aforesaid view of the law principally because of the precedent to be found in Babu Ram v. Ramji Lal and others (A.I.R 1964 Punjab 444) and the difference between the proceedings under section 488 and the proceedings under the other provisions of the Code was not canvassed before him at all.
6. The Supreme Court has said in Nand Lal Misra v. Kanhaiya Lal Misra (A.I.R 1960 S.C 882) (6) that the proceedings in question are of a civil nature. This observation was made in the context of a preliminary enquiry. The Court held that no such enquiry is needed in the case of an application under section 488 of the old code as is the case with a complaint. In Rekha Jena v. Manoranjan Jena (I.L.R 1965 Cuttack 566) (7) it was observed by Das, J., that though there is no provision in the Code of Criminal Procedure similar to one in Order IX of the Code of Civil Procedure and yet the principles of natural justice embodied in Order IX may, in appropriate circumstances, be applied to cases of this nature with a view to give justice to the parties. It was held by him further that the inherent power of the Court is not to be invoked where there is an express provision covering the issue in the Code but there is no provision to deal with an application dismissed for default under section 488 of the old code and it is, therefore, within the competence of a Magistrate to restore such an application. Vide N.E Vasudevan Nair v. Kalyani Amma Gouri Amma and others (1970 Cr. LJ. 1173) (8) Moidu. J. of Kerala High Court held that the proceedings under section 488of the Old Code are not in the nature of criminal proceedings; they are civil proceedings in reality though dealt with summarily in a criminal court with the object of speedy disposal for reasons of convenience and social order.
7. According to Shri Maheshwar Daya, the learned counsel for the respondent, a criminal Court is not competent to review or revoke any order passed by it. Reference has been made in this behalf to the provision under section 362 of the New Code, which has replaced section 369 of the old code, which has replaced section 369 of the old code. This section reads as follows:
“362. Court not to alter judgment.—Save as ottherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
The words “final order” did not figure in section 369 of the old code and have been introduced in the new section for the obvious purpose of clarifying the scope of the provision, otherwise there is no change in the law as a matter of substance because even in the absence of these words in the old section, the Courts were construing “judgment” as inclusive of a ‘final order’.
8. Shri Maheshwar Dayal has invited my attention to S. Kuppuswami Rao v. The King (A.I.R 1949 F.C 1) (9), where their Lordships found that a final order must be an order which finally determines the point in dispute and brings the case to an end. They referred to Halsbury's Laws of England (paras 260-64 of volume IX, Hailsham Edition) where it was observed that in criminal proceedings the word ‘judgment’ is intended to indicate the ‘final order’ in a trial terminating in the conviction or acquittal of the accused. In this case the issue before the Court was released to sanction under section 197 of the old code and in spite of the order of the Magistrate on the point favouring the accused the prosecution pending before him had to be continued.
9. In the case of Sankatha Singh and others v. State of Uttar Pradesh (A.I.R 1962 S.C 1208) the appellants had been convicted under certain sections of the Indian Penal Code by the Court of a First Class Magistrate and against their conviction they appealed to the Court of Session. On the date their appeal came up for hearing the appellants and their counsel all absented themselves. The learned Sessions Judge perused the judgment of the Magistrate, went though the record and then came to the conclusion that there was no ground for interference with the decision of the court below. His decision was a decision on merits and, therefore, a ‘judgment’ attracting the provisions of sections 369 and 424 of the Old Code. Such a judgment, of course, could not be reviewed or altered in view of the specific prohibition to be found in sections 369 and 424 of the Old Code.
10. In Baby Ram. v. Ramji Lal and others (A.I.R 1964 Punjab 444) there was a dispute between the parties about some land and on an application made under section 145 of the old code the Magistrate passed a preliminary order under sub-section (1) of that section on the day it was filed, i.e 24-10-1961. The application was dismissed for default on 25-11-1961 and on the self same date a fresh application was made by the applicant with identical allegations. The Magistrate passed another order under sub-section (1) of section 145 on 2-1-1962 and on the conclusion of the proceedings declared that Ramji Lal and others were in possession of the land on the date of the first preliminary order and they shall not be ousted except in due course of law. Gurdev Singh, J., hearing the petition against the order of the Magistrate held that the proceedings commencing on the second application were new proceedings and the Magistrate could determine the question of possession with reference to the date of the preliminary order passed in the second application and not the earlier one. It was observed by him with reference to Sankatha Singh's case that unlike a civil court a criminal court other than a High Court does not possess any inherent powers nor is there any provision in the Criminal Procedure Code to govern the proceedings instituted in a criminal Court to review its judgment or order even if the order is patently wrong or opposed to the law. The decision of each case proceeds on its own facts and so far as facts go there is nothing common between that case and the one under consideration.
11. In another case quoted before me by Shri Maheshwar Dayal, Bindeshwari Prasad Singh v. Kali Singh (A.I.R 1977 S.C 2432) (10) the complaint was concerned with a trivial matter which could be dealt with by the Sub-Divisional Magistrate himself but instead of that the ordered a detailed inquiry under section 202 of the Code of Criminal Procedure. After the matter had been pending for more than two years the complaint was dismissed on 23-11-1968 under section 203 of the Code of Criminal Procedure on the ground that the complainant was absent and was not showing any interest in the inquiry ordered by the Court. After a few days the complainant appeared before the Magistrate and prayed for the order of dismissal being recalled and after the matter had been transferred from one court to another court for some time summoning of the accused was ordered. In this background it was submitted before the Supreme Court that the Magistrate had no jurisdiction to recall the order dated 23-11-1968. The Court found that there was no express order recalling the order dismissing the complaint and the recall could be inferred from the issue of process. It was noticed by their Lordships that the order in question was a judicial order by which the Magistrate had given full reasons for dismissing the complainant and even of the Magistrate had any jurisdiction to recall this order it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. The court went on to say further, no doubt, that there was no provision in the Code empowering a Magistrate to review and recall an order passed by him and the Code did not contain a provision for inherent powers which section 561A conferred on the High Court alone. When it was submitted to the Court that the application for recall be treated as a fresh complaint their lordships observed that a second complaint could lie only on fresh facts or even on the previous facts only if a special case was made out.
12. State of Mysore v. Akkamma and another (1974 Cr. LJ. 214) (11) would have no relevance here because it dealt with a complaint under section 323 I.P.C and the dismissal of the complaint due to the absence of the complainant amounted to an order of acquittal which could not, of course, be reviewed by the Magistrate.
13. In another case cited by Shri Maheshwar Dayal, State of Orissa v. Ram Chander Aggarwala etc. (A.I.R 1979 S.C 87) (12), it was that sections 369 and 424 of the Code of Criminal Procedure did not restrict the prohibition under section 369 to the trial court alone, it applied even to the High Court and the High Court could not invoke the provisions of section 561a of the old code for exercising a power which had been specifically prohibited by the Code. In the case the High Court had in exercise of its revisional powers imposed a sentence of imprisonment on certain persons under the provisions of the Forward Contracts (Regulation) Act 1952 and had reviewed its order subsequently and substituted the sentence of imprisonment with one of fine. It was found in Mohan Lal Maganlal Thakkar v. State of Gujarat (A.I.R 1968 S.C 733) (13) that no single general test for finality of a judgment or order has so far been laid down, the reason probably being that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. Generally speaking, their Lordships said, a judgment or order which determines the principal matter in question is termed final even though it directs enquiries or is made on an interlocutory application or reserves liberty to apply.
14. Amar Nath and others v. State of Haryana and others (A.I.R 1977 S.C 2185) (14) has been quoted with the object of urging that ‘interlocutory order’ denotes an order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties, but if the order substantially affects the rights of the accused, or decides certain rights of the parties, it cannot be said to be an interlocutory order so as to fall beyond the revisional powers of the High Court. It was observed further that the orders which are matters of moment and which affect or adjudicate the rights of accused or a particular aspect of the trial cannot be said to be interlocutory orders so as not to be amenable to be revised by the High Court. In that case the police had, while submitting its final report to the judicial Magistrate, said that no case at all had been made out against the appellants before the Supreme Court and that they be set at liberty on the acceptance of that report. The complainant filed a revision petition before the Session Judge against, the order of the Magistrate releasing the appellants but failed. Then he instituted regular complaint against all the accused, including the appellants which was also dismissed by the Magistrate on merits. When the complainant knocked the door of the Session Court for the second time in revision the said court ordered a further enquiry. What the Magistrate, however, did was that he summoned the appellants straightaway with the effect of putting them on trial. The last-mentioned order, the Supreme Court held, was not an interlocutory order because the appellants had been compelled thereby to face a trial without proper application of mind and a serious question as to their rights to be put on trial had been decided against them.
15. Bajrans Singh v. Ram Kishan and another (A.I.R 1967 Punjab 361) (15) dealt with the revival of a complaint under section 420 I.P.C dismissed under section 259 Cr. P.C In this case too the ratio of Babu Ram's case was followed.
16. State of Mysore v. Akkamma and another (1974 Cr. L.J 214) will again throw no light useful for tackling the problem before me because the order dismissing the complaint there was covered by section 247 of the Code of Criminal Procedure and amounted, therefore, to an acquittal.
17. In Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 (Supp.) 2 S.C.R 297 (16), it was held that there is no legal bar to the entertainability of a second complaint but it is only when the Magistrate has misdirected himself with regard to the scope of the enquiry under section 203 of the Code of Criminal Procedure or has passed an order misunderstanding the nature of the complaint or the order is manifestly unjust or absurd or it is based on an incomplete record. In such a situation it can be said that there is such a manifest error or a manifest miscarriage of justice that a second complaint on the same allegations may be enteretained. The other exception circumstances in which is second complaint may be held entertainable their lordship observed were when it is supported by fresh and further evidence.
18. The learned counsel for the petitioner has also referred to a number of authorities so as to urge that the Metropolitan Magistrate was well within his competence when he set aside the order of dismissal passed by himself and proceeded to re-hear the matter.
19. In the case reported in Dwarka Nath Mondul v. Beni Madhab Banerjee (I.L.R 28 Calcutta 652) (17) the charge laid against the accused was one under section 406 of the Indian Penal Code and the defendant was discharged because of the complainant being absent on the date of hearing. Subsequently the complainant came to the court with a prayer for the revival of the matter and acceding to his request the Magistrate revived the case and ordered the issue of summons. The matter came up before a Full Bench of the Calcutta High Court and six of the seven Judges held that a Presidency Magistrate was competent to re-hear a warrant case triable under Chapter XXI of the Old Code in which he had discharged the accused person. Even the one dissenting member of the Bench, Ghosh, J., was of the view that where the case has been struct off by reason of the absence of the complainant without pronouncing any opinion as to the guilt or innocence of the accused, the order of the Magistrate is not a judgment within the meaning of the Code of Criminal Procedure and may be altered or reviewed by him on application made in this behalf. The case would, however, be different where the Magistrate has exercised his judgment and made an order of discharge after taking evidence, howsoever incomplete.
20. In the case reported in State v. Prakash Chandra Agarwalla (A.I.R 1970 Orissa 171) (18) a complaint under section 7 of the Essential Commodities Act, 1955 was dismissed by the Magistrate because the prosecution had failed to supply to the accused papers under section 173 of the old code and when the Inspector Vigilance filed the necessary papers and prayed that the order dismissing his report be recalled the Magistrate granted the said prayer and ordered re-hearing of the compliant. On the legality of this order coming up for scrutiny before the High Court, B.K Patra, J., held that the order of discharge passed in the circumstances of the case was not a decision given on merits; it could not be called a judgment and the Magistrate was not, therefore, debarred from reviewing it, setting it aside and reviving the old complaint. It was argued before the learned Judge that the prosecution should have sought remedy by approaching the superior court to get the order of discharge set aside and because of the specific provision available in this behalf it was not open to the Magistrate to review his own order and revive the relevant proceedings. The contention was, however, repelled with the observation that sections 436 and 437 of the Old Code were only enabling provisions and they did not take away the jurisdiction vested in the Magistrate to hear the complaint.
21. As a matter of fact, it is not possible to equate maintenance proceedings contemplated by Chapter IX of the New Code with other proceedings under the Code, say, for instance, those covered by Chapters XIX and XX, for a variety of reasons. Failure to maintain a wife or a child has not been made by the statute liable to punishment; the respondent is not to be treated as an offender, the petition under section 125 of the New Code is not a complaint and no preliminary inquiry is to be held before the issue of a process in pursuance thereof. Unlike a criminal trial, here the Court can proceed against the respondent ex parte due to his non-appearance and can pass a final order behind his back. The provision for maintenance has been incorporated in the Code of Criminal Procedure only with the aim of making available to helpless persons a swift and speedy remedy otherwise it would seem here to be quite out of place. In the case of an accused person there is a presumption of innocence unless there is proof to the contrary and this in the matter of interpretation is, therefore, against the prosecution. On the other hand, the provision in section 125 being a benevolent one, it has to be construed in favour of the persons who seek shelter thereunder. A petition under section 125 and a complaint to have someone sentence for a crime are not expected, therefore, to be meted out the same treatment. It was remarked by Dua, J. (as his Lordship then was), in the case of Ashish (supra) that section 488 of the Old Code (which corresponds to section 125 of the New Code) has been enacted with the object of enabling discarded wives and helpless deserted children to secure the much needed and urgent relief. It is thus intended to serve a social purpose, the desirablility and effectiveness of which cannot be overemphasised.
22. In Bai Tahira v. Ali Hussain Fissalli Chothia and another (A.I.R 1979 S.C 362) (19) the provision in section 125 of the New Code was described as a benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees. Their Lordships were of the view further that welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of article 15(3) of the Constitution must belight the meaning of the section and section 125 and sister clauses must receive compassionate expansion of sense that the words used permit.
23. An application under section 125 of the New Code cannot be a police report as contemplated by section 173 nor is it a complaint as defined by section 2(b). The result produced by its conclusion is neither acquittal nor conviction, not even a discharge. Moreover, a final order under section 125, to be taken as such, must satisfy the conditions laid down by section 354(6), i.e, it must state the points for determination, the decision thereon and the reasons for the decision. In the present case no evidence whatever had been adduced and the stage of passing a final order had not as such been reached and consequently no such order was actually passed. The mere fact that the order of the Magistrate had the effect of consigning the petition for maintenance to the record room would not by itself be enough to clothe it with the attributes of a final order.
24. It has been contended for the respondent that Prema Jain could have filed a fresh application under section 125 of the Code of Criminal Procedure and it was not necessary, therefore, to ask for the restoration of the application dismissed in default. The remedy suggested on behalf of the respondent would not, however, have served the ends of justice and this is because a petition under section 125 is different from a complaint in one more essential aspect. The accused person can be punished in the same manner as he was punishable under the first complaint on the institution of the second complaint in the event of the dismissal of the first complaint and that is why raking up a proceeding already consigned to the record room may not be needed. So far as the case for maintenance is concerned, however, the Court can award the allowance from the date of the order or at best from the date of the petition and if the previous petition be not restorable the petitioner would get no relief for the period elapsing between the date of the first application and that of the second one. As pointed out by the Supreme Court the provision under consideration is meant for the benefit of the weaker and helpless sections of the society and it must, therefore, be construed in such a manner as to permit dispensation of full justice.
25. The order in the present case was administrative in nature rather than a judicial one, and the Magistrate cannot be held to be incapable of reviewing or reversing the same. This view finds strength in the provisions following section 125 in the same Chapter which entitle the Court to alter, to review or even to cancel its judicial orders.
26. I would, for the reasons stated above, accept the petition filed by Prema Jain and set aside the order of the learned Additional Sessions Judge with the effect of bringing in force again the order of the learned Magistrate dated 27-1-1977 whereby the revived the petition of Prema Jain dismissed for default on 16-7-1976.
April, 1979
R.S Petition accepted.section 125 of the New Code
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