TAJINDER PAL SINGH Vs. STATE & ORS.

JUDGEMENT

(1.) THIS is a petition under section 482 Cr. P.C. seeking quashing of order dated 07.12.2011 passed by the MM, Mahila Court (East) whereby the application filed by respondent No. 2 and her son Master Daljeet Singh, respondent No. 3, for restoration of their petition under section 125 Cr. P.C., which was dismissed in default, was allowed and the petition was restored. The impugned order of the learned MM, Mahila Court has been assailed mainly on two grounds. Firstly, that the Magistrate has no power to review or recall its own order of dismissal of complaint on account of non -appearance of the complainant in view of section 256 and 362 of Code of Criminal Procedure and secondly, that in any case, there was no justifiable ground for restoration of the petition after 21 months of its dismissal in default.

(2.) I have heard learned counsel for the petitioner.

(3.) IT is true that the complaint dismissed in default cannot be restored by the Magistrate under the provisions of Cr.P.C. as there is no specific provision of such eventuality. However, it is trite that proceedings for maintenance under section 125 Cr. P.C. are of the nature of civil proceedings though the criminal process is applied for the purpose of summary and speedy disposal of such matters. In fact, such proceedings can be termed to be that of hybrid character. It is understood that exercise of inherent power can be done for setting right the wrong with the applicability of 'ubi jus ibi remedium'. The provisions of section 125 Cr. P.C. cannot be compared with the proceedings of a complaint case since the former proceedings are not for the purpose of fact finding of complicity in a criminal case, but is to decide a civil right of the complainant/petitioner through the process of Criminal Procedure Code. In the case of Smt. Prema Jain Vs. Sudhir Kumar Jain, : 1980 Cri. L. J. 80, the Single Judge Bench of this Court held that restoration application in such a case is maintainable because the dismissal was administrative in nature rather than a judicial one. The learned Single Judge held that the Magistrate has power to set aside dismissal order and restore the proceedings under section 125 of the Criminal Procedure Code. While agreeing with the learned Single Judge with regard to the power of the Magistrate to set aside the dismissal order and to restore the proceedings under section 125 Cr. P.C., I have not been able to persuade myself to certain observations in the said case in regard to the nature of order rendered in respect of the dismissal. The dismissal order cannot be regarded as administrative one. A Division bench of Punjab and Haryana High Court in Smt. Kamla Devi and others vs. Mehma Singh, : 1989 Cri. L.J., 1866 also held that Magistrate can order restoration of the petition on sufficient cause being shown as proceedings under section 125 Cr. P.C. are civil in nature. The Division Bench also observed that in a way the provisions in Chapter_IX of the Criminal Procedure Code constitute a Code of Procedure by itself.