Punjab-Haryana High Court
Jasbir Singh vs Kiran on 11 October, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-4806 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM M-4806 of 2011 (O&M)
Date of Decision: October 11, 2012
Jasbir Singh .... Petitioner
Versus
Kiran ... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. K.K. Chaudhary, Advocate,
for Mr. Sanjiv Gupta, Advocate,
for the petitioner.
None for the respondent.
Paramjeet Singh,J. (Oral)
Present petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of order dated 03.09.2010 (Annexure P/4) passed by learned Judicial Magistrate First Class, Ambala, whereby petition under Section 125 Cr.P.C. has been ordered to be restored and order dated 15.01.2011 (Annexure P/6) passed by the learned Additional Sessions Judge, Ambala,whereby revision petition filed by the petitioner has been dismissed.
Brief facts of the case are that respondent-wife filed a petition under Section 125 Cr.P.C., which was dismissed in default vide order dated CRM M-4806 of 2011 2 12.09.2009. Thereafter, an application for restoration of the same was filed before the learned trial Court. The learned Judicial Magistrate Ist Class, Ambala, vide order dated 04.11.2009 restored the petition under Section 125 Cr.P.C. without hearing the petitioner. Against the order dated 04.11.2009, the petitioner filed revision petition, which was allowed by the learned Additional Sessions Judge, Ambala vide order dated 01.05.2010 and the case was remanded to the learned Judicial Magistrate Ist Class, Ambala. Thereafter, the impugned order dated 03.09.2010 (Annexure P/4) was passed by the learned Judicial Magistrate First Class. Thereafter, petitioner filed revision petition, which was dismissed by the learned Additional Sessions Judge vide order dated 15.01.2011 (Annexure P/6) by holding that the proceedings under Section 125 Cr.P.C. are of civil nature.
I have heard learned counsel for the petitioner and perused the record.
Perusal of the record shows that proceedings under Section 125 Cr.P.C. are quasi civil in nature. Hon'ble Supreme Court in the matter of Vijay Kumar Parshad versus State of Bihar and others, 2004(2) RCR (Criminal) 470 S.C. has held that proceedings under Section 125 of Cr.P.C. are of civil nature. In view of the law laid down in the said authority, the Court has inherent power to restore the proceedings, although there is no provision in the Code of Criminal Procedure for recalling or reviewing the order.
Section 127 Cr.P.C. provides that on proof of a change in the circumstances of any person receiving a monthly allowance for the CRM M-4806 of 2011 3 maintenance or interim maintenance or order under Section 125 Cr.P.C. the Magistrate may make such alterations as he thinks fit in the allowance of the maintenance or interim maintenance. Under sub-section 2 of Section 127 Cr.P.C., the Magistrate has been conferred with the jurisdiction that in consequence of any decision of a competent civil court any order passed under Section 125 could be cancelled or varied. Thus, the Code permits varying i.e. recalling of its earlier decision by the learned Magistrate in certain contingencies. Thus, the scheme of Chapter IX of the Code shows that the Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C.
In the case of State of Uttar Pradesh vs. Bhagwant Kishore Joshi, AIR 1964 SC 221, the Hon'ble Supreme Court has considered the provisions under Chapter IX and opined that there is no bar on the Court to recall its order dismissing an application under Section 125 Cr.P.C., while dealing with the permissibility of a preliminary enquiry prior to registration of FIR and observed as under:-
"In the absence of any prohibition in the Code, express or implied, I am of the opinion that it is open to a police officer to make preliminary enquiries before registering an offence and make a full scale investigation into it."
The Bombay High Court in the matter of Sau. Mandakini B. Pagire vs. Bhausaheb Genu Pagire and another, 2009 Crl. L.J., 80 came to the same conclusion. Referring to Section 362 of Cr.P.C., the Court held that the recalling of dismissal order cannot be treated as an alteration or change in the judgment or final order. Once it is found that the Criminal CRM M-4806 of 2011 4 Court has inherent power to grant interim allowance to the wife under Section 125 Cr.P.C. then it follows that exercise of such inherent powers can be done for setting right the wrong. The principle "ubi-jus-ibi- remedium" is attracted in such a case.
In Kehari Singh versus State of U.P. and another, 2005 Crl. L.J., 2330, it was held that people in such miserable conditions due to unavoidable conditions may not be able to attend the Court proceedings on every date fixed there to pursue their cases. In such situations, if it is held that the Court lacks the jurisdiction to restore the cases in absence of such provisions, the very object and purpose of the legislation would be frustrated. The paramount rule of interpretation of provisions, which overrides the others is that the Statute is to be expounded according to the intent of the authority that made it. Therefore, even if there is any lacuna in the Statute, then also it is the obligation on the part of the Magistrate to give effect to the will of the Legislature by a judicial order. Thus, the learned Magistrate is empowered to restore the proceedings initiated under Section 125 Cr.P.C., which were dismissed for non-appearance of the complainant/applicant.
In view of the above, I do not find any illegality or perversity in the impugned orders.
Dismissed.
October 11, 2012 [Paramjeet Singh] vkd Judge