MATOLI Vs. RUKMANI

JUDGEMENT

(1.) THE ques tion of law arising for decision in this petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) is as to whether an order made by a Sub- Divisional Magistrate under section 488(1) of the Code of Criminal Procedure, 1898 (now to be referred as the old Code) ordering payment of monthly allowance to a wife or other persons entitled to such an order can be enforced by an Executive Magistrate under sub-section (3) of section 488 of the old code even if an application under that provision was not pending on 1st April, 1974, or only by a Judicial Magistrate of the First Class on an application being made under the second proviso of sub-section (3) of section 125 of the new Code. THE relevant facts giving rise to this case are that on llth October, 1968, a Sub-Divisional Magistrate passed an order under section 488 (1; of the old code against the petitioner and in favour of his wife, Smt. Rukmani. An applica tion dated 4th March, 1974 moved by Smt. Rukmani under section 488 (3) of the old code having been dismissed by the Magistrate on the ground that it was barred by time, second application for rea lisation of arrears of maintenance allow ance for a subsequent period was moved by her on the 3rd October, 1975 before an Executive Magistrate within the meaning of Section 6 (iv) of the new code, which was allowed by him; THE husband filed a revision before a learned Sessions Judge against the order of the learned Magis trate which was dismissed on the ground that it was not maintainable. He has now moved this Court. When this petition came up for hearing before Hon'ble H. N. Kapoor, J. conflicting decisions by learned single Judges of this court on the question men tioned above were brought to his notice and he, being of the opinion that autho ritative pronouncement on the question was needed for the guidance of subordi nate courts, directed the papers of the case to be laid before the Hon'ble the Chief Justice for constituting a larger Bench. When the case came up for decision before a Division Bench consisting of Hon'ble S. Malik and Hon'ble Gupta, JJ. there was a cleavage of opinion between the two learned Judges. In three unreported decisions of this court Surjeet Singh vs. Smt. Manjit Kaur (Criminal Misc. Application No. 4481 of 1975.) decided on 18th February, 1976 by Hon'ble B. N. Katju, J. Dwarika Prasad Dtttta vs. Smt. Kanchan Rani and another (Criminal Misc. application No. 2300 of 1976.) decided on 12th October, 1976 by Hon'ble J. P. Chaturvedi, J. and Han Prasad Kureel vs. Smt. Jagrani and an other (Criminal Misc. Application No. 2700of 1976.) decided on 26th November, 1976 by Hon'ble S. Malik, J. the view was taken that an order under section 488, sub-sec.(1) of the old code passed before the repeal of the old Code could not be enforced by an Executive Magistrate in case an application for its enforcement was made after the 1st April, 1974. Hon'ble P. N, Bakshi, J. in Natha vs. Smt. Bhuri (1977 Criminal Rulings 59) has taken a contrary view. On a consideration of the decisions cited before the learned Judges and the relevant provisions of the old and new Code, while Hon'ble S. Malik, J. held that since no application under section 488 (3) of the old Code was pending on 1st April, 1974 when the new Code came into force, the Executive Magistrate who passed orders in the instant case had no jurisdiction to make the impugned order and such an order could have been passed only by a Judicial Magistrate of the First Class. Hon'ble M. M. Gupta, J. on the other hand, took the view that the application for the enforcement of the order under section 438 (1) of the old Code made by the opposite party to this petition, Smt. Rukmani after the repeal of the old Code and coming into force of the new Code was a continuation of the proceedings under section 488 (I) of the old Code and consequently the applica tion made by the opposite party was governed by section 488 (2) (a) of the new Code and the Executive Magistrate was competent to entertain and dispose of the same. Hon'ble M. M. Gupta, J. further held that in any event on the facts of the case the interest of justice would not be served by interfering with the order passed by the Executive Magis trate and consequently it was not a fit case for exercise of the powers of this Court under section 482 of the new Code and this petition should be dismissed. THE Judges being equally divided on the question of law arising for consideration. this petition has been listed before us under Chapter VHI, rule 3 of the Rules of Court. We have heard learned counsel for the applicant and the learned counsel representing the opposite parties and find ourselves in agreement with the view expressed by Hon'ble S. Malik. J. on the controversial question of law involved. To the extent relevant for the pur pose of this case, the changes brought aVout by the repeal of the old Code by the new may be briefly surveyed. An order for maintenance under section 488 (1) of the old Cold could be passed by a District Magistrate, a Presi dency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class. After the 1st April, 1974 when the new Code came into force, an order under section 125 (1) of the new Code, in what might be described as a non-metropolitan area, can be made only by a Magistrate of the first class. Section 6 of the new Code provides that, "6. Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:- (i) Court of Sessions ; (ii) Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan Magistrates ; (iii) Judicial Magistrates of the Second Class and (iv) Executive Magistrates". It is provided by section 3 (1) (c) (i) and (ii) of the new Code that, 3. (1) In this Code, (c) any reference to a Magistrate of the first class shall......... (i) in relation to a metropolitan area, be construed as a reference to Metropolitan Magistrate exercising jurisdiction in that area, (ii) in relation to any other area be construed as a reference to a Judicial Magistrate of the First Class exercising jurisdiction in that area ; See under section 13 (1) of the new Code, as it stands modified in this State, it is open to this Court, at the request of the State Government, to confer all the powers of Judicial Magistrates of the first class on all Executive Magistrates in the State of Uttar Pradesh under the new Code or under any other law for the time being in force in respect of certain classes of cases. THE amendment to the new Code introduced in this State does nst however, empower the High Court to confer powers of the first class Magis trates on Executive Magistrates as far as proceedings under section 125 of the new Code are concerned. Thus after the coming into force of the new Code, Judicial Magistrates of the first class alone are empowered to pass orders under section 125 (1) of the new Code, further, the words 'any' such Magistrate' in sub-section (3) of section 125 shows that an order under section 125 (i) of the new Code can be enforced also only by a Judicial Magistrate of the first class. THE consequences following the re peal of the old Code by the new Code have been dealt with more or less exhaustively by section 484 of the new Code. As a result of section 484(1) of the new Code, the old Code stood repealed on the coming into force of the new Code namely, on 1st April, 1974, Clause (c) of sub-section (2) of section 484 of the New Code provides that : "Notwithstanding such repeal :- (a) if immediately before the date on which this Code comes into force, there is any appeal, application, trial inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be dispos ed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force imme diately before such commencement, (hereinafter referred to as the old Code), as if this Code has not come into force : Provided that every inquiry under Chapter XVIII of old Code, which is pending at the commencement of this Code, shall be dealt with and dis posed of in accordance with the provisions of this Code ; We are concerned here with the pro viso to clause (c) of sub- section (2) of section 484 of the new Code since this is not a case of any inquiry under Chapter XVIII of the old Code, an order under section 488 (1) of the old Code or one under section 125 (1) of the new Code is enforceable only on the basis of an application made as would appear from the second proviso to sub-section (3) of section 488 of the old Code and the second proviso to sub-section (3) of section 425 of the new Code. A Magis trate had no power under section 488 (3) of the old Code and has none under section 125 (3) of the new code to enforce such orders suo motu. Admit tedly, on the date when the new Code came into force, there was no application under section 488 (3) of the old Code pending at the instance of the opposite party before an Executive Magistrate and consequently clause (a) of sub section (2) of section 484 of the new Code is not attracted to the proceedings. Clause (b) of sub-section (2) of section 484 of the new Code runs as follows :- "Notwithstanding such repeal, All notifications published, proclama tions issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appoint ments as special Magistrates, made under the old Code and which are in force immediately before the com mencement of this Code, shall be deemed, respectively, to have been published, issued conferred, pres cribed, defined, passed or made under the corresponding provisions of this Code, (emphasis supplied): Under the old Code sentences could be passed and orders made by courts. THE context in which the word 'order' occurs in the provisions quoted above leaves no room for doubt that it is not confined to those of a legislative charac ter but includes Judicial orders made by courts. As a result of the deeming clause in section 484 (2) (b), quoted above, the order which had been passed in favour of the opposite party under section 488 (1) of the old Code must for all purposes be equated with an order under section 125 (1) of the new Code. "It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion." See Mr. Boucher Pierce Andre vs. Superin tendent, Central Jail, Tijar (A. I. R. 1975 S. 0. 154). Thus as a consequence of clause (b) of sub section (2) of section 484 of the new Code, an order passed by a Sub-divisional Magistrate under section 488 (1) of the old Code shall, in the eye of law be deemed to be an order passed by Judi cial Magistrate of the first class under sub-section (1) of section 125 of the new Code. When sub-section (3) of section 125 of the new Code empowers 'any such Magistrate' to enforce an order made under section 125 thereof on an applica tion made to that court, it evidently refers to a Magistrate competent to pass an order under sub-section (1) of section 125 of the new Code after its coming into force or deemed to have been passed by a Magistrate of the first class are consequence of the operation of clause (b) of sub-section (2) of section 484. A consideration of the provisions of the old and the new Code, referred to above, in our judgment leads to the inevitable conclusion that the order which was passed under section 488 (1) of the old Code in favour of the Opposite party, in the eye of law, after the 1st April, 1974 has to be deemed to be an order passed by a Judicial Magis trate of the first class and after 1st April. 1974 an application for enforcement of the order is required to be made to a Judicial Magistrate of the first class. Consequently the Executive Magistrate, who passed the impugned order in the present case, had no jurisdiction to do so on the basis of the application which was presented after the 1st April, 1974. THE consideration which weighed with Hon'ble M.M. Gupta, J. that proceed ings for enforcement of an order under ' section 488 fl) of the old Code is a conti nuation of that order, is, in our opinion, of no relevance since, as already stated, the law requires a separate appli cation being presented to the Court competent to entertain it for its enforce ment and no such application was pen ding on the date when the new Code case into force. We consequently respectfully disagree with the opinion expressed by Hon'ble P. N. Bakshi, J, in Nathit v. Smt. Bhttri (supra) and Hon'ble M. M.I Gupta, J. in the instant case and agree with the view taken by Hon'ble S. Malik, J. and the decision in Surjit Singh v. Smt. Manfit Kattr, Dwarka Prasad Dutta v. Smt. Kimchan Rani and another and Hart Prasad Kureel v. Smt. Jagrani and another (supra) THE question, however, remains as to whether this is a fit case for the exercise of the discretionary powers vested in this Court under section 482 of the new Code. Discretionary and inherent powers vested in this Court under section 482 of the new Code are to be exercised only to prevent abuse of the process of any court or otherwise to secure the ends of justice. Unless there has been a miscarriage or failure of justice, in our opinion this Court would not be justified in exercis ing its powers under section 482 of the new Code. In exercise of powers under section 439 of the old Code in Bisheshar and others v. Rex through Bachcha Lal Pandey (50 Criminal Law Journal 322 Allahabad.) a Division Bench of this Court declined to interfere with an order passed in complete disregard of a statutory provision of the Indian Penal Code since the interests of justice did not demand it. Similar considerations, in our opinion, apply to exercise of powers under section 482 of the new Code. In the instant case. THE order of maintenance in favour of the opposite party was passed as far back as llth October, 1969. Merely ten years have elapsed since then but on ac count of one technicality or other, as noted by Hon'ble M.M. Gupta, J. the opposite party has not been able to enforce her right of maintenance so far because of the uncertainty in the interpretation of section 484 of the new Code as is apparent from the conflic ting decisions of this Court. If we were to set aside the order under challenge, the opposite party in our opinion: would be entitled to the benefit of section 5 of the Limitation Act and shall have to present another application for the same purpose before a Judicial Magistrate of the first class to obtain an order similar to the one passed by the Sub-Divi sional Magistrate which has not been challenged before us on merits. This will only entail further long drawn litigation any consequent misery to the already suffering and disordered wife. We consequently decline to interfere in this petition and direct its dismissal.