HARIBHAU KISHAN PATEL Vs. MANORMA

JUDGEMENT

(1.) The short question involved in this application under section 482, Code of Criminal Procedure is whether the learned Magistrate has power to allow amendment to the application made under section 125, Code of Criminal Procedure.

(2.) The learned counsel for the applicant has urged before me that the proceedings under Section 125, Cr.P.C. are criminal proceedings and the provisions of the Code of Civil Procedure are not applicable to the criminal proceedings. The rules relating to pleadings, according to him, therefore, do not apply to the proceedings under section 125. Cr. P. C. The learned counsel for the applicant has relied upon a decision of the Orissa High Court reported in Norbet Kispatta v. Mst. Tersa Kerketa (1971 Cr.L.J. 1496) to show that the proceedings under section 488. Cr.P.C. are not proceedings of civil nature. The learned Magistrate has rejected to objection raised on behalf of the applicant that the provisions of the Cr.P.C. are not applicable to the criminal proceedings. He consequently allowed the amendment to the application under section 125. Cr.P.C. Being aggrieved, the applicant has preferred the instant application under Section 482, Cr.P.C.

(3.) He has raised the same contention before me that the proceedings under Section 125 Cr.P.C. are criminal proceedings and are not proceedings of civil nature and hence there is no power to the learned Magistrate to allow the amendment. He has also relied upon the decision of the Orissa High Court cited. Although it is held in the said decision that the proceedings are not of civil nature, the learned Judge in the said case has in fact enlarged the scope by not restricting the parties to the allegations in the application. However, the learned counsel for the non-applicant has brought to my notice two decisions of this Court. In the case of Baburao Akaram v. Kuswn Baburao (1980 Mh.L.J. 871) the question was whether the general principles of res-judicata which are applicable to the civil proceedings are applicable in the proceedings under Section 125, Cr.P.C. This court held that the scheme of Chapter IX of Cr.P.C. clearly shows that the proceedings therein are essentially civil in nature providing for expeditious and summary remedy for the party claiming maintenance. In the case of Marotro v. Chandrakanta (1981 Mh.L.J. 907), the question was relating to pleadings itself. This Court held that the proceedings under Section 125, Cr.P.C. are basically civil in nature and the ingredients of section 125 enjoin a duty upon the applicant to aver the facts which are necessary for the grant of maintenance under the said provision. It was held in the said case that unless these averments are available in the application, the non-applicant will not get proper opportunity to meet the case of the applicant. It is thus clear from the decision of this Court cited supra that the proceedings under Section 125, Cr. P.C. are civil in nature. Rules of pleadings are specifically made applicable in the case of Marotrao Chandrakennta (1981 Mh.L.J. 907).