2003 (10) TMI 689 - HC - Indian Laws

Summary

Issues Involved:
1. Whether a Magistrate has the power to dismiss a petition under Section 125 of the Cr.P.C. for default.
2. Whether a Magistrate has the inherent power to restore a petition for maintenance dismissed for default.

Issue-Wise Detailed Analysis:

1. Power of Magistrate to Dismiss a Petition under Section 125 for Default:
The judgment addresses the question of whether a Magistrate has the authority to dismiss a maintenance petition under Section 125 of the Criminal Procedure Code (Cr.P.C.) for default. The court examined various precedents and concluded that the Magistrate is not empowered to pass an order dismissing an application for maintenance for default. The decision in Abdul Wahed's case was cited, which clearly states, "The Trial Court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained." This view is supported by other judgments, such as Shyamta v. Smt. Dangra, which reinforced that "A Criminal Court cannot even review its judgment or order. It can only correct clerical or arithmetical errors."

2. Inherent Power to Restore a Petition Dismissed for Default:
The court also considered whether the Magistrate has inherent powers to restore a maintenance petition dismissed for default. The judgment highlighted that the Criminal Procedure Code does not confer inherent powers to subordinate criminal courts, including the power to review or recall orders once a final judgment has been signed. The court referred to Section 362 of the Cr.P.C., which mandates that no court shall alter or review its judgment or final order except to correct clerical or arithmetical errors. The judgment states, "The Court becomes functus officio the moment a final order disposing of the case is signed." The court also cited the Supreme Court's decision in A.S. Gauraya v. S.N. Thakur, which emphasized that "there is absolutely no provision in the Criminal Procedure Code of 1898 empowering a Magistrate to review or recall an order passed by him."

The court acknowledged contrary views from other High Courts, such as the Punjab and Haryana High Court in Kamla Devi v. Mehma Singh and the Calcutta High Court in S.K. Alauddin v. Khadiza Bibi, which suggested that Magistrates could invoke inherent powers to restore dismissed applications. However, the court ultimately rejected these views, stating that any correction of an illegal order must be done through revisional jurisdiction, not by the Magistrate who issued the original order.

Conclusion:
The court concluded that a Magistrate does not have the power to dismiss a petition under Section 125, Cr.P.C., for default. Furthermore, if such a petition is dismissed, the Magistrate does not have the inherent power to restore it. Instead, the affected party must seek recourse through revisional jurisdiction as provided under the Criminal Procedure Code. The judgment emphasizes that "once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a prayer with the same relief."

Final Pronouncement:
The reference was answered accordingly, affirming that the Magistrate has no power to dismiss a maintenance petition for default or to restore such a petition if dismissed. The court appreciated the assistance of the Senior Advocate, Mr. C. Padmanabha Reddy, as amicus curiae.