JAGMOHAN ARORA Vs. SAROJ ARORA

JUDGEMENT

(1.) The issue that arises for consideration in the present petition is whether the learned Metropolitan Magistrate has the jurisdiction to recall/review its Crl. M.C. 377/2010 Page 2 of 10 order of dismissal of the complaint under Section 125 Cr.P.C. in default of appearance and non-prosecution.

(2.) The facts in a nutshell are that a complaint under Section 125 Cr.P.C. seeking maintenance was filed by the Respondent who is the wife of the Petitioner. The learned Metropolitan Magistrate vide its order dated 5 th February, 2008 directed the Petitioner to pay a monthly maintenance of Rs. 1000/- to the Respondent which the Petitioner duly paid till 30 th March, 2009 when the complaint case No.218/2007 was dismissed for non-prosecution as the Complainant/Respondent failed to appear. The Respondent thereafter filed an application for restoration of the petition accompanied by the affidavit of the learned counsel. On the said application, the learned Metropolitan Magistrate recalled its order. Vide the impugned order dated 17 th December, 2009 restored the complaint to its original position subject to a cost of Rs.300/-.

(3.) Learned counsel for the Petitioner contends that the impugned order dated 17 th December, 2009 recalling the order dated 30 th March, 2009 dismissing the complaint for non-prosecution is contrary to the law laid-down by the Hon'ble Supreme Court in Adalat Prasad vs. Rooplal Jindal & Ors., 2004 7 SCC 338. It is urged that even though proceedings under Section 125 Cr.P.C. relate to the right of the wife/child/parent to claim maintenance is Crl. M.C. 377/2010 Page 3 of 10 essentially a civil right but the procedure to be followed for adjudication of the said right is as per the Code of Criminal Procedure, 1973. Moreover, the non-compliance of an order passed under Section 125 Cr.P.C. entails penal action i.e. imprisonment. There is no provision in the Code of Criminal Procedure empowering a Magistrate to review/recall its order. While dealing with the proceedings under Section 125 Cr.P.C., the Magistrate is bound by the procedure prescribed under the Cr.P.C. In case of dismissal of a complaint by the Magistrate, the remedy lies by approaching the superior court by way of a petition under Section 482 Cr.P.C. or in revisional jurisdiction. The procedure prescribed is a summary procedure as prescribed for summons cases and the same is circumscribed by the Code of Criminal Procedure, 1973. An order of dismissal of the complaint under Section 125 Cr.P.C. is in the form of termination of the complaint and thus is in the nature of termination of a complaint case. The law laid-down by the hon'ble Supreme Court in Adalat Prasad is reiterated in Subramanium Sethuraman vs. State of Maharashtra & Anr., 2004 CrLJ 4609; N.K. Sharma vs. Abhimanyu, 2005 CrLJ 4529; Everest Advertising Pvt. Ltd. Vs. State, GNCTD, 2007 CrLJ 2442; Dinesh Dalmia vs. CBI, 2008 CrLJ 337and Dharmeshbhai Vasudevbhai & Ors., 2009 Crl. L.J. 2969. Crl. M.C. 377/2010 Page 4 of 10