Maintenance Orders U/S 125 CrPC Can Be Recalled U/S 127; Bar U/S 362 CrPC Not Applicable In Such Cases: Allahabad HC

Perusing the mandate of Section 362 CrPC, a bench of Justice Arun Kumar Singh Deshwal observed that if any provision is provided under CrPC that permits the recall or alteration of the judgement or final order, then the bar u/s 362 CrPC will not apply to those provisions, as is the case with Section 125 CrPC.

For context, Section 362 CrPC states that a final judgment or order cannot be recalled or reviewed after it is signed unless otherwise provided by the code or any other law.

The single judge made these observations while rejecting an application filed by the husband challenging a family court's order, which allowed a recall application filed by his wife (opposite party no. 2) and daughter (opposite party no. 3).

The recall application was filed concerning the dismissal of an application (for want of prosecution) filed by the opposite party no. 1 & 2 seeking maintenance from the applicant u/s 125 CrPC.

In the impugned order, the court below observed that in a proceeding under 125 CrPC, if the case was dismissed for want of prosecution, it can be recalled under Section-126(3) CrPC, where the court has all the power to make such an order as the circumstances require.

Before the HC, the applicant's counsel argued that the recall order was erroneous as once an order has been passed in a criminal proceeding dismissing the application u/s 125 CrPC for want of prosecution, it cannot be recalled or modified given the bar of Section 362 CrPC.

On the other hand, the counsel for the opposite parties contended that it is clear that an exception has been provided in Section 362 CrPC itself and that exception has been mentioned in Section 127 CrPC which permits the court to alter or change any order passed u/s 125 CrPC.

In its order, the single judge noted that the bar under Section 362 provides for certain exceptions and concerning orders passed under Section 125 CrPC, the magistrate has the power under Section 126(3) CrPC to make such order as may be just and proper.

The Court further noted that Section 127 CrPC also provides that the court, which has passed an order for maintenance u/s 125 CrPC, including an interim maintenance order, has jurisdiction to make such alteration as required.

“In Section 125 CrPC using of expression 'as the Magistrate from time to time direct', the use of expression from time to time has purpose and meaning. It clearly contemplates that the order passed u/s 125(1) CrPC, the Magistrate may have to exercise jurisdiction from time to time. The above legislative scheme indicates that Magistrate does not become functus officio after passing of the order u/s 125 CrPC,” the Court added.

In view of this, the Court specifically held that the order passed under 125 CrPC may be final or interim and can be recalled or altered under 127 CrPC; therefore, a bar of Section 362 CrPC is not applicable in such cases.

Case title - Rajkumar vs. State Of U.P. And 2 Others 2024 LiveLaw (AB) 316 [APPLICATION U/S 482 No. - 10290 of 2019]

Citation: 2024 LiveLaw (AB) 316

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