SUHIRD KUMAR Vs. NEETA

JUDGEMENT

(1.) The petitioner husband has filed this petition-seeking to quash the proceedings against him filed under Section 125 of the Code of Criminal Procedure (for short the Code) by his wife and his daughter the respondents herein. The circumstances leading to the filing of the present petition are that the first respondent and the second respondent through the first respondent filed a petition under Section 125 of the Code- against the petitioner in the court of metropolitan magistrate on the ground that the petitioner though having sufficient means had neglected to maintain the respondents being his wife and the daughter, they being unable to maintain themselves. This petition under Section 125 of the Code was dismissed in default of non-appearance of the first respondent on 3-7-86. The first respondent applied for restoration of this petition on the ground that she was under the bona fide belief that the date ol' hearing was 30-7-86 which was. also the date noted in the diary of her counsel. It could not be questioned that there was sufficient cause for non-appearance of the first respondent on 3-7-86. The application of the first respondent for restoration of her petition under Section 125 of the Code was allowed by order dated 3-3-87 by the learned magistrate. He rejected the contention of the petitioner husband that the magistrate had no jurisdiction to restore the petition dismissed in default. Against (hat order a revision was filed by the petitioner husband in the court of Sessions which was also dismissed by order dated 17-8-87 of the Court holding that the magistrate had jurisdiction to restore the petition. Against that order the present petition has been filed.

(2.) In support of his submission that the magistrate could not have restored a petition under Section 125 of the Code dismissed in default Mr. Sen learned counsel for the petitioner referred to the few decisions principally that of the Supreme Court in Maj Genl. A.S. Gauraya and another v. S.N. Thakar and another, AIR 1986 SC 1440. InSmt. Harbhajan Kaur v. Major Sant Singh, AIR 1969 Delhi 298. this Court held while referring to the provisions of Article 134CI)(c) of the Constitution that proceedings under Section 125 of the Code (Section 488 of the Old Code of 1898) were criminal and were not civil proceedings and further that expression "criminal proceedings" under Article 134 was wide enough to include proceedings under Section 125. There could not be any dispute to this proposition. Reference was also made to an old Division Bench decision of the Calcutta High Court in Hakimi Jan Bibi v. Mouze All, 1905 Vol 11 Criminal Law Journal Reports 213. In a similar petition by the wife seeking maintenance the magistrate issued notice for a certain date. On that date the husband appeared and offered to maintain the wife if she agreed to live with him. The petitioner, however, failed to appear on that date and her petition was dismissed. She applied to the magistrate for restoration of her case alleging that her non-appearance was doe to illness. The magistrate refused to restore the case holding that there was no power given to him by the Court to restore a case of that nature. The High Court observed that the husband had admitted the petitioner to be his wife and had offered to maintain her on the condition of her living with him and that in Sub-section (3) of Section 488 of the old Code if the wife refused to live with him the magistrate would have 10 consider any ground of refusal stated by her and that far from staling any ground for refusal to live with her husband she herself stated in the petition that she was willing to live with her husband. The Court was thus of the view that the magistrate could not have made an order under Section 488 of the old Code. Under those circumstances it was held that she did not appear on the hearing to satisfy the magistrate on that point and nor did she send any one to ask for adjournment on the ground of illness, therefore, there was nothing illegal in any of the orders made by the magistrate. This decision does help the petitioner in the present case to some extent but I find that it has to be confined to the facts of that case as Court was influenced by an offer of the husband to maintain the wife provided she lived with him and the wife in her petition had herself stated that she was willing to live with her husband.

(3.) It appears that this decision of the Calcutta High Court was relied upon by the Punjab High Court in Bhagwan Singh v. Mst. Gurnam Kaur and another',1965(68) PLR 127. The Court observed that in the absence of any provision in the Code itself, the power of restoration could not be spelled out from the general provisions. The Court in this connection also referred to its earlier decision rendered under Section 145 of the Code in Babu Ram v.RamjiLal and others, 1964 (66) PLR 196. In this it was held that if once a magistrate passed an order dismissing for default an application under Section 145 of the Code the proceedings could not be restored.