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Dhanraj Vs. Mst. Kishni Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Application No. 180/78
Judge
Reported in1979WLN(UC)191
AppellantDhanraj
RespondentMst. Kishni Devi
DispositionApplication dismissed
Cases Referred and Laisram v. Sakhi Divi
Excerpt:
.....invoking its powers which are essentially inherent. it is true that there is no provision in the code of criminal procedure conferring inherent powers on the criminal courts but having regard to the object arid nature of the proceedings under section 488 crpc, in my opinion such a power is implicit so far as the proceedings under this chapter are concerned. though the power under this chapter has been conferred on the criminal courts but essentially it is conferment of civil jurisdiction as these are the proceedings in which the non-applicant is not the accused and there is no trial of any offence.;the application for restoration was filed on the next day and prayer was made there in to continue and restore the original application. the restoration application thus could be treated as..........application under section 488 criminal procedure code (old) notice was ordered to be issued to the present applicant dhan raj on 17 10-1968, the non-applicant smt. kishni devi and her counsel shri hulash mal chopra were not present so the application was dismissed in default. by that date notice was not served on the present applicant. on the next day i.e. on 18-10-1968 an application for restoration was filed by shri hulash mal chopra stating that he was under the impression that there is no case mentioned in his diary of 17. 10 68 so he could not present himself in the court at the time when the case was called out and he also did not ask mst. kishni devi to remain present on 17.1 0.68 so the application was dismissed in default. it was prayed that the same may kindly be restored. the.....
Judgment:

M.C. Jain, J.

1. The applicant Dhan Raj by the application under Section 482 Criminal Procedure Code, seeks to quash the proceedings under Section 488 Criminal Procedure Code (old) initiated by the respondent Smt. Kishni Devi by he; application dated 8.7. 1963 for maintenance of herself and her two children.

2. The facts which are relevant for the decision of this application may be briefly stated as under: On presentation of the application Under Section 488 Criminal Procedure Code (old) notice was ordered to be issued to the present applicant Dhan Raj On 17 10-1968, the non-applicant Smt. Kishni Devi and her counsel Shri Hulash Mal Chopra were not present so the application was dismissed in default. By that date notice was not served on the present applicant. On the next day i.e. on 18-10-1968 an application for restoration was filed by Shri Hulash Mal Chopra stating that he was under the impression that there is no case mentioned in his diary of 17. 10 68 so he could not present himself in the Court at the time when the case was called out and he also did not ask Mst. Kishni Devi to remain present on 17.1 0.68 so the application was dismissed in default. It was prayed that the same may kindly be restored. The learned Magistrate fixed 30th October, 1968 for arguments and ordered that the application be put up along with record. On 30th October 1968, the restoration application was allowed and the original application was restored and notice was ordered to be issued to the present applicant. The present applicant did not appear despite service of notice so, ex parte proceedings were ordered to be drawn against the present applicant on 9.12.69 and 12-1-70 was fixed for the applicant's evidence. On 12-1-70 appearance was put in by Sri Ami Lal Advocate on behalf of the present applicant and thereafter on the application for setting aside the ex-parte order was set aside on 19-5-70 and 2 6-70 was fixed for filing of the reply of the applicant. The present applicant then submitted his reply on the said date and the case was then posted for the applicant's evidence. After recording the evidence and after heating both the parties the learned Magistrate by his order dated 25-9-75 allowed the application and ordered the present applicant to pay the amount of maintenance. Dissatisfied with the quantum of maintenance the applicant Smt Kishni Devi preferred the revision petition which was heard by the Additional Sessions Judge, Ganganagar who by his order dated 30-3-1977 allowed the revision petition and revised the quantum of maintenance and further remanded the case back to the learned Magistrate with the direction to fix the date from which the amount of maintenance is to be paid. It was also directed that the learned Magistrate shall consider as to whether the two children have become major or not. The learned Magistrate thereafter proceeded to comply with the directions given by the learned Additional Sessions Judge and fixed the date for payment of maintenance from the date of application i.e. 8-7-1968 and further found that Mst. Vidhya and Kundan Lal have become major and they would be entitled for the maintenance for six years and eight years respectively w.e.f. 8-7-1968 and after the expiry of that period they would not be entitled to any maintenance. The present applicant then went in revision and the learned Additional Sessions by his order dated 4.10 1978 dismissed the revision petition.

3. Dhan Raj has now moved this application for quashing the proceedings on the ground that the Magistrate had no jurisdiction to recall the order dated 17-10-68 and the application could not be restored and all the proceedings conducted thereafter were without jurisdiction, void and so are liable to be quashed.

4. I have heard Shri S.R. Singhi on behalf of the applicant and Shri M.L. Garg on behalf of the non-applicant Smt. Kishni Devi at length.

5. Shri Singhi vehemently contended that there is no provision In the Code of Criminal Procedure conferring inherent powers on a Criminal Court like the provision contained in Section 151 Civil Procedure Code. So the learned Magistrate had no jurisdiction to restore the application which Was dismissed in default on 17-10-68 so all the proceedings conducted thereafter are without jurisdiction. Reliance was placed by him in support of his contention on a decision of the Supreme Court Bindeshweri Prasad v. Kali Singh : 1978CriLJ187 .

6. Shri Garg on the other hand submitted that the proceedings under Section 488 Criminal Procedure Code are in the nature of civil proceedings-The other provision of the Code of Criminal Procedure relating to the trial of summons or warrant cases are not applicable to the proceedings under Section 488 Criminal Procedure Code. Essentially a civil relief is granted in an application under Section 488 Criminal Procedure Code. Powers have been conferred on criminal courts so that the question of maintenance of the wife or children can be decided expeditiously Section 488 is a self contained provision though not exhaustive and even exparte proceedings can be taken against the non-applicant husband or father when he does not appear un-like the accused persons and even exparte order can be set-aside on an application submitted within a period of three months if good cause is shown. So looking to the provision contained in Section 488 Criminal Procedure Code the learned Counsel urged that the observations of their Lordship of the Supreme Court in the case cited by Shri Singhi would not be applicable and their Lordships of the Supreme Court were not called upon to consider the question as to the powers of restoration of the proceedings under Section 488 Criminal Procedure Code. In support of his contention as to the nature of proceedings and as to the powers of restoration vested in a criminal Court, Shri Garg placed reliance on the decision of Supreme Court Nand Lal v. Kanyailal : 1960CriLJ1246 , Ram Raton v. Smt. Meena and Anr. ILR 1964 (14) Raj 379, Rekha Jena v. Manoranjan Jena ILR 1965 Cuttack 566.

7. Shri Garg further contended that if the application for maintenance was dismissed in default, second application was maintainable. He urged that if any such objection was taken by the present applicant before the learned Magistrate, the applicant could have moved a fresh application or the restoration application could have been treated as the main application or he would have prayed to treat the restoration application as such but the present applicant failed to raise this objection all through out and he may not now be allowed to raise the objection for the first time through the present application. The present applicant even did not challenge the first order of the learned Magistrate whereby he was ordered to pay maintenance and the quantum of the maintenance was only disputed by Smt. Kishni Devi in her revision petition. It was contended that considering the facts and circumstances of the present case ends of justice would be secured only by non-interference in proceedings of the courts below and the present case is not a fit case for exercise of the inherent powers by this Court.

8. Having heard the learned Counsel for the parties at length and having given my earnest consideration to the rival contentions advanced before me by both the sides I am clearly of the opinion that the proceedings do not call for any interference in exercise of the inherent powers. Although it is not necessary to enter into this controversy as to whether the Magistrate had jurisdiction to restore the application dismissed in default, but as contentions have been advanced before me I consider it proper to examine the question. For examining this question it is necessary to take into consideration the nature of the provisions of Section 488 Criminal Procedure Code (Old). In Nand Lal Misra's case (supra), their Lordship of the Supreme Court had an occasion to consider the nature of proceedings under Section 488 Criminal Procedure Code. Their Lordship were called upon to examine the question as to whether a Magistrate can hold any preliminary enquiry as to paternity before issuing notice to the respondents and in that connection considered the provisions contained in Section 488 and the nature of the proceedings under Chapter XXXVI of the Code under the heading 'the maintenance of wife and children', their Lordships observed that:

The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a Magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the Magistrate.

9. Their Lordships however observed in para 6 of the judgment that the proceedings under Section 488 Criminal Procedure Code are of a civil nature and so the Code does not contemplate any preliminary enquiry and provisions of Sections 200 to 203 of the Code do not apply to the application under Section 488 of the Code.

10. In Ram Ratan's case as well it has been observed that 'proceedings under Section 488 Criminal Procedure Code are of a quasi civil nature. As a matter of fact these proceedings partake more of civil than of criminal character.' It would not be proper to decide the case on the principles applicable to the trial of an accused in a criminal case.

11. It was further observed in that case that an application under Section 488 Criminal Procedure Code is not a complaint' within the meaning of Section 4(1)(h) for there is no question of the commission of any offence. Under Section 4(1) (O) offence means any act or omission made punishable by any law for the time being in force and as no punishment has been provided for failure to provide one's wife or children, the proceedings arising on an application under Section 488 Criminal Procedure Code cannot be said to relate to an offence. The person against whom such an application is made is not an accused.

12. In view of what has been observed above relating to the nature of the proceedings, it is to be seen as to whether the Criminal Court while hearing the application under Section 488 Criminal Procedure Code can exercise the powers of restoration when the same is dismissed in default. There is a specific provision in the proviso to Sub-section (6) of Section 488(1) for setting aside an ex-parte order for good cause shown oh an application made within three months from the date of passing of the ex-parte order. The Magistrate is competent to proceed to hear and determine the case ex parte when he is satisfied that the husband or father is wilfully avoiding service or wilfully neglects to attend the Court. When the proceedings are essentially civil in nature, in my opinion when such an application is dismissed in default, the Magistrate is competent to restore the same if sufficient cause is shown by invoking its powers which are essentially inherent. It is true that there is no provision In the Code of Criminal Procedure conferring inherent powers on the criminal courts but having regard to the object and nature of the proceedings under Section 488 CrPC, in my opinion such a power is implicit so far as the proceedings under this chapter has been conferred on the criminal courts but essentially it is conferment of civil jurisdiction as these are the proceedings in which the non-applicant is not the accused and there is no trial of any offence.

13. Bindeshwari Prasad's case is not a case relating to an application under Section 488 Criminal Procedure Code and the question of power of restoration of such an application did nor arise for consideration in that case. Their Lordship of the Supreme Court while considering the question of inherent powers in a criminal case observed as under:

We might mention that the order dated 23rd November, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint. Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898(which applies to this case) empowering a Magistrate to review or recall an order passed by him. The Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact after having passed the order dated 23-11-68, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground what so ever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint was entirely without jurisdiction. This being the position, all subsequent proceedings following upon {he recalling the said order, would fall to the ground including order dated 3-5-72 summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings.

14. The question of the power of the Magistrate to restore an application which has been dismissed in default came up for consideration before the Orissa High Court in Rekha Jena's case (supra). In that case, it was held as under,:

No doubt, there is no provision in the Code of Criminal Procedure similar to the one in Order 9 of the Code of Civil Procedure. But the principles of natural justice embodied in Order 9 of the Code of Civil Procedure may, in appropriate circumstances, with a view to give justice to the parties, be applied to cases of this nature. The Court has inherent jurisdiction to remedy a wrong under certain circumstances. The Criminal courts have, to a limited extent, power to review their own orders. But the inherent power of the Court is not to be invoked where express provision has been made in the Code. There is, however, no such provision to deal with a case of default of an application under Section 488 of the Code of Criminal Procedure, It is, therefore, within the powers of the Magistrate to restore such an application which has been dismissed for default. Hence, the order of restoration of the application for maintenance is o valid order.

15. Considering the facts of the present case, it may be stated that by 17-10-68, the present applicant was not even served & the application for restoration was filed on the next day and prayer was made therein to continue and restore the original application. The restoration application thus could be treated as the fresh application if any objection to that effect would have been raised before the Magistrate. It is well settled that second application for maintenance is not barred when the first application has been dismissed in default. Reference in this connection may be made to Man Mohan Dey v. Surabala Dast AIR 1920 Cal 38 (DB), Maung Hla Maung v. Ma On Kin AIR 1927 Rangoon 38, A.W. Khan v. Zaitubi AIR 1950 Nagpur 45 and Laisram v. Sakhi Divi AIR 1965 Manipur 49.

16. As no objection has been raised by the present applicant and the order was allowed to go unchallenged for more than a decade, in my opinion it is not just and proper to invoke the inherent powers of this Court to quash the entire proceedings. The powers under Section 482 Criminal Procedure Code are discretionary and I do not consider the present case to be a fit case for exercise of those power and the same need not be pressed in service for the simple reason that it would not be in the interest of justice to quash the proceedings. By quashing of the proceedings in exercise of these powers, ends of justice would not be secured, rather ends of justice would be negatived. As the order of restoration and subsequent order determining the maintenance had become final and binding as the same was not challenged by resorting to any remedy available in law, the same cannot be allowed to be challenged now by this application after a lapse of such a long period.

17. No other point has been pressed before me.

18. In the remit there is no merit in the present application, the application is therefore dismissed.


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