SHYAMTA Vs. DANGRA

JUDGEMENT

(1.) SHYAMTA, husband of opposite party no. 1 had moved this application under Section 482 CrPC for quashing the orders dated 9-3-1978, 23-9-1978 and the proceedings in case no. 2/11 of 1974 (Smt. Dangra v. Shymta) pending in the court of the S.D.M., district Harriya, Basti.

(2.) SMT. Dangra, opposite party no. 1 claiming to be the legally wedded wife of the applicant, filed a maintenance application under Section 488 of the old CrPC. It gave rise to case no. 2/11 of 1974. The case remained pending for quite a long time and ultimately her application was dismissed for default on 26-11-1978. She gave an application for restoration on the ground that on the date fixed she was suffering from cold and could not appear nor she could instruct her counsel. Although it was urged on behalf of the applicant that there was no provision under the CrPC to restore the application under Section 488 of the CrPC dismissed in default yet the learned Magistrate restored it by his order dated 9-3-1978. Aggrieved by the said order the applicant filed a revision and reiterated his contention before the learned Sessions Judge but he negatived it on the ground that the Magistrate could restore the application under his inherent powers. This order of the learned Sessions Judge was passed on 28-9-1978. Hence this application under Section 482 CrPC quashing the aforesaid orders and consequently the proceedings in case no. 2/11 of 1974.

(3.) A criminal court cannot even review its judgment or order. It can only correct clerical or arithmetical errors. Section 488 (6) contemplates only one situation in which restoration of an order passed under Section 488 CrPC can be done. It is only when an ex- parte order has been passed against a husband, this remedy is not available to a wife who files a petition for maintenance. The learned Sessions Judge was wrong in holding that the Magistrate could have restored her application in the exercise of inherent powers. As held in the case of Krishna Rao Paine v. Premila Bai, 1976 CrLJ 1819, Magistrate has no power under Section S61-A to order restoration. The inherent powers are possessed only by the High Court. The proceedings may be of a quasi judicial nature but that does not mean that the Magistrate delaing with them gets all the powers of a civil court. In Hakimi Jan Bibi v. Mouze Ali, 2 CrLJ 213 a Division Bench of the Calcutta High Court had held that the law does not empower a Magistrate to rehear an application for maintenance under Section 488 CrPC dismissed for non appearence. I respectfully subscribe to this view. A wife whose application for maintenance has been dismissed for default can file a second application and on this ground also the question of restoration of previous application does not arise.