BHAGWATI Vs. RAM SEWAK

JUDGEMENT

(1.) THE application of the applicant under section 125 CrPC was dismissed for default. An application was made for restoration of the proceeding and the Magistrate restored it. A revision was filed challenging that order and the revisional court has set aside the order of the Magistrate restoring and reviving the application dismissed in default. Aggrieved from the order of the revisional court the applicant has preferred this petition under section 482 CrPC. Reliance is being placed upon the Delhi High Court in Prema Devi Jain v. Sudhir Kumar, 1980 CrLJ 80 in which it was held that dismissal order was administrative in nature rather than a judicial one and Magistrate had power to set aside the same and restore it. THEre is, however, a pronouncement of this High Court itself upon which revisional court has relied. It is the case of Shyamta v. Smt. Dangra, 1980 ACrR 3. It was held that a criminal court cannot even review its judgment and order......... Only clerical error can be corrected. A restoration cannot be made. THE wife, however, could file a second application. In this pronouncement also an earlier pronouncement laying down similar law reported in AIR 1969 Delhi 298 had been relied upon. It would thus appear that the Delhi High Court has taken conflicting view in the two pronouncements. It may also be observed that the later pronouncement is also not of a larger Bench but of a single Judge only. In the Alld. case Shyamta (supra) reliance has been placed upon an earlier pronouncement of this Court reported in Krishna Rao v. Pramila, 1976 CrLJ 1819 = 1976 AWC 360 in which also it was held that the Magistrate has no power to order restoration.

(2.) IN fact, the crux of the matter is whether the proceedings under Section 125 CrPC are a judicial proceeding or simply an administrative proceeding. I do not have any doubt in my mind that the proceeding under Section 125 CrPC is a judicial proceeding and the order of allowing maintenance or dismissing the application are both judicial orders. If they are held not to be so where would be a question of revision. IN fact, against any administrative order there will be no further remedy but that is not the position of law. I may also observe that by any administrative order any party cannot be taxed with a liability, not only that there is even a further provision that if the maintenance allowance is not paid without justification and sufficient grounds attachment can be made and even the person taxed with such liability can be sent to jail. When that is position, I am of the opinion that any order passed in the proceeding under section 125 CrPC is a judicial order and the proceeding itself is a judicial proceeding. I may also observe that, in fact, it will amount to hold contradictory view on the point if an order allowing maintenance is treated a judicial order while any order dismissing petition for maintenance is treated as administrative order. Any such distinction cannot be made.