Magistrate Can Review Order Passed Under Sec 125 CrPC; Bar Under Sec 362 CrPC Not Applicable : SC [Read Judgment]

The Supreme Court of India has held that a Magistrate who passes an order on settlement between parties under Section 125 of the Code of Criminal Procedure (CrPC) has the power to recall or set aside the Order if terms of the same are violated, and Section 362 of CrPC does not function as a bar on the same.

THE LAW

Section 125 of the CrPC bestows in the Magistrate of the first class the power to pass an order directing for the payment of a monthly allowance for maintenance of wives, children and parents of any person having sufficient means to provide the same.

Section 362 of the CrPc, on the other hand, provides a bar on the authority of the Court to alter or review a judgement or final order which disposes of a case, except for the correction of a clerical or arithmetical mistake.

THE ISSUE

Whether the setting aside of an order disposing of an application under Section 125 CrPC and consequently restoring the said application is contrary to Section 362 of the CrPC.

The Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy took into consideration the legislative scheme behind the promulgation of Section 362 of the CrPC by breaking down the Section.

A. Saving Clause

The Bench stated that as the Section contains a saving clause, "the rigour as contained in Section 362 CrPC is relaxed in following two conditions:

i. Save as otherwise provided by the Code of Criminal Procedure.

ii. Any other law for the time being in force."

Therefore, the Bench held that "the legislature was aware that there are and may be situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other law for the time being in force."

In examination of exceptions provided by CrPC itself, the Bench explored the legislative scheme of Section 125 CrPC:

"Section 125 CrPC is a social justice legislation which orders for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced."

The case of Badshah v. Urmila Badshah Godse [(2014) 1 SCC 188] was invoked in order to supplement the aforementioned statement. This case allows for a purposive interpretation to be given to Section 125 as the purpose is to achieve the constitutional vision of social justice as is enshrined in the Preamble of the Constitution of India. Therefore, a duty is placed on the shoulders of the court to advance the cause of social justice and therefore, during the course of interpretation, bridge the gap between the law and society.

In order to achieve the same, an approach towards "social justice adjudication/social context judging" must be adopted, as opposed to a mere "adversarial approach". As elaborated by Prof. Madhava Menon, this approach is "essentially the application of equality jurisprudence as evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice." As per Prof. Menon, in situations with socio-economic inequalities, an adversarial approach operates in a disadvantageous manner toward the weaker party. Therefore, it is incumbent upon the Judge to be sensitive toward such inequalities so as to not allow for miscarriage of justice.

B. Express provisions for alteration or cancellation under Section 125(1), Section 125(5) and Section 127 of the CrPC

The Bench stated that "a closer look of Section 125 CrPC itself indicates that the Court after passing judgment or final order in the proceeding under Section 125 CrPC does not become functus officio. The Section itself contains express provisions where order passed under Section 125(1), Section 125(5) and Section 127 of CrPC…"

The usage of the expression "as the Magistrate from time to time direct" in Section 125(1) contemplates the continuous jurisdiction that can be exercised by the Magistrate when the occasion arises and that the Magistrate does not become functus officio after passing an order under Section 125.

While Section 125(5) expressly empowers the Magistrate to cancel an order passed under Section 125(1) on fulfilment of certain conditions, Section 127 "discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 CrPC".

HELD

1. Application of Section 362 can be relaxed in proceedings under Section 125

On the basis of the aforementioned contentions, the Bench then held that the embargo contained under Section 362 of the CrPC was relaxed in proceedings under Section 125 CrPC. As the submissions of the counsel for the Appellant were founded on this issue only, the Bench did not accept the same.

2. Section 125 must be interpreted in a manner to advance the cause of justice for women

The Bench also proceeded to state that "Section 125 CrPC has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted."

Case Name: Sanjeev Kapoor v. Chandana Kapoor & Ors    
Case Number: Criminal Appeal Nos. 286 of 2020    
Coram: Justices Ashok Bhushan and R. Subhash Reddy    
Counsel: Sr. Adv. Subhodh Markandey(for appellant) Risabh Jain and Bhaskar Vali (for respondents)    

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