Final Or Interim Maintenance Order U/S 125 CrPC Can Be Recalled Or Altered U/S 127 CrPC; Bar U/S 362 CrPC Not Applicable: Allahabad HC
The Allahabad High Court ruled that the interim or final order of maintenance passed under Section 125 CrPC can be recalled or altered under Section 127 CrPC.
The Court held that the bar on altering or reviewing the signed judgment or order under Section 362 does not apply to such cases as they fall in exceptional category.
The bench of Justice Arun Kumar Singh Deshwal observed, “…it is clear that the order passed u/s 125 Cr.P.C. may be final or interim, can be recalled or altered u/s 127 Cr.P.C. Therefore, it falls in the category of exceptional cases mentioned in Section 362 Cr.P.C. Hence, a bar of Section 362 Cr.P.C. is not applicable in such cases.”
Brief Facts-
In the present case, the opposite parties are the wife and daughter of the applicant, Rajkumar. The application for maintenance u/s 125 Cr.P.C. filed by opposite parties was dismissed for want of prosecution. The wife and daughter of the applicant, filed a recall application against the order which was allowed by the court below by the impugned order as per which if the case was dismissed for want of prosecution, the same can be recalled under Section-126(3) Cr.P.C. where the court has all power to make such an order as the circumstances require. Hence, the applicant challenged the impugned order by approaching the High Court under Section 482 Cr.P.C.
The Court stated that so far as the bar u/s 362 Cr.P.C. is concerned, the bar has been imposed to recall or modify the final order by Section-362 Cr.P.C. after signing the same. According to the Court, it is clear from Section-362 Cr.P.C. that unless otherwise provided by the code or any other law, final judgement or order cannot be recalled or reviewed after signing the same.
The Court perused Sections 125, 126 and 127 of CrPC and observed, “Section-125 Cr.P.C. is social justice legislation which orders for the maintenance of wives, children and parents and the legislature has provided in Sections-125(5) Cr.P.C., 126 Cr.P.C. as well as Section-127 Cr.P.C., certain conditions on fulfilling of which, order passed u/s 125 Cr.P.C. can be recalled or modified.”
The Court noted that the use of the expression "as the Magistrate from time to time direct" in Section 125 has purpose and meaning. According to the Court, it contemplates that the order passed u/s 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time.
“The above legislative scheme indicates that Magistrate does not become functus officio after passing of the order u/s 125 Cr.P.C.”, the Court added.
The Court mentioned the decision in Sanjeev Kapoor Vs. Chandana Kapoor & Others reported in AIR 2020 SC 1064 and quoted, “Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-section (2) of Section 127 Cr.P.C. also empowers the Magistrate to cancel or vary an order under Section 125 Cr.P.C. The legislative scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where the court passing a judgment or final order disposing of the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in the proceedings under Section 125 Cr.P.C. as indicated above.”
Accordingly, the Court rejected the application under Section 482 Cr.P.C.
Cause Title: Rajkumar v. State of U.P. (Neutral Citation: 2024:AHC:87205)
Appearance:
Appellant: Adv. R.V. Pandey
Respondent: G.A. Ashutosh Gupta, Adv. Ashutosh Sharma and Adv. Gyan Prakash Verma
