Allahabad High Court
Tarun Kapur vs State Of U.P. And Another on 4 June, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:95620 Court No. - 52 Case :- APPLICATION U/S 528 BNSS No. - 14650 of 2025 Applicant :- Tarun Kapur Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kripa Shankar Pandey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. This is an application filed under Section 528 of the BNSS seeking quashing of the order dated 30.01.2025 passed by Addl. Principal Judge, Family Court, Jhansi in Misc. Case No.196 of 2023 (Smt. Alpana Kapur Vs. Tarun Kapur), arising out of Case No.689 of 2017 (Smt. Alpana Vs. Tarun Kumar) u/s 125 Cr.P.C., P.S. Sipari Bazar, Jhansi.
2. The case of the applicant is that proceedings under Section 125 Cr.P.C. was instituted by the opposite party no.2 wife against the applicant on 21.12.2017 with an allegation that on 11.11.2016, marriage of the applicant stood solemnized with the opposite party no.2, however, owing to matrimonial discord which entailed proceedings under Section 125 Cr.P.C. for maintenance.
3. The complaint so preferred under Section 125 of the Cr.P.C. came to be dismissed on 07.01.2023 for non prosecution. A restoration application was preferred by the opposite party no.2 on 16.03.2023 for recalling the order dated 07.01.2023 and restoring the proceedings under Section 125 Cr.P.C. which came to be allowed on 30.01.2025 in Misc. Case No.196 of 2023.
4. Questioning the order dated 30.01.2025 passed by the Court of Additional Principal Judge, Family Court, Jhansi recalling the order dated 07.01.2023 dismissing the application under Section 125 Cr.P.C., the present application has been preferred.
5. Learned counsel for the applicant has submitted that the order dated 30.01.2025 cannot be sustained for a single moment for more than one reason, firstly there is no provision of restoration/recall of final order dismissing the application under Section 125 Cr.P.C. and secondly, in absence of filing of any application for condonation of the delay, the court could not have allowed the restoration application.
6. Learned AGA while countering the submissions so made by the learned counsel for the applicant has submitted that there is no express bar which prohibits entertaining of a restoration/recall application dismissing in default the application under Section 125 Cr.P.C. and further there were adequate grounds mentioned in the restoration application itself which was taken into consideration and the restoration application came to be allowed.
7. I have heard submissions so made across the bar and perused the record carefully.
8. Apparently, proceedings under Section 125 Cr.P.C. was initiated by the opposite party no.2 on 21.12.2017. The said application came to be dismissed for non-prosecution on 07.01.2023 thereafter the restoration application came to be preferred for recalling of the order dated 07.01.2023. On 16.03.2023, which came to be allowed on 30.01.2025.
9. The first and foremost question which would rise would inevitably be weather post passing of the order dismissing the application under Section 125 Cr.P.C., the restoration/recall application would be maintainable or not and whether Presiding Officer becomes functus officio or not.
10. The coordinate Bench of this Court in Kehari Singh son of Shri Ambika Prasad vs. The State of U.P. and Smt. Rekha Singh 2005 CRILJ 2330 had the occasion to consider the said aspect and it was observed as under:
“12. The provisions of Section 126(2) of Criminal Procedure Code provides that an order for payment proposed to be made on an application of the person against whom an order for payment of maintenance is proposed, the ex part order passed against him may be set aside by learned Magistrate but there is no specific provision if the application is dismissed in non-appearance, of applicant complainant to recall the ex parte order and to restore the case to its original number. The intention of the Legislature was to provide eminent relief to most needy person as wife, children and the parents as mentioned in Section 125 Cr. P. C., such persons are not able to maintain themselves and are facing many problems and they are not earning persons. In such circumstances, they are not in proper position to pursue their cases in the court by affording the necessary expenses. So in such miserable conditions and due to some unavoidable circumstances they may not be able to attend the court proceedings on every date fixed there to pursue their cases. In such situation, if it is held that the court lacks the jurisdiction to restore the case in absence of such provision, the very object and purpose of Legislature would be frustrated. The paramount rule of interpretation which overrides the others is that the Statute is to be expounded according to the intent of think that made it. Therefore, if there is any lacuna in the Statute, then also to oblige the Magistrate judicially in order to give effect to the will of the Legislature Therefore, the learned Magistrate is empowered to restore the proceedings initiated under Section 125 Cr. P. C. which were dismissed in non-appearance of the complainant/applicant.
13. The application filed under Section 125 Cr. P.C. claiming maintenance allowance cannot be termed as a complaint. The word “Complaint” is defined in Section 2(d) of the Cr. P. C. as ‘Complaint means any allegation made orally or in writing to a magistrate, with a view to his taking action under this code that some person, whether known or unknown has committed an offence, but does not include police report.
14. In view of the discussions made above, I am of the opinion that due to non-appearance of the respondent No. 2, the maintenance proceedings can be restored by recalling or setting aside the order of the dismissal for effective adjudication on merits. Therefore, the impugned order dated 12.3.2001 passed by learned Judicial Magistrate, Kalpi, district Jalaun in Criminal Case No. 300 of 2000 and order dated 22.6.2001, passed by the leaned III Addl. Sessions Judge, Jalaun at Orai in Criminal Revision No. 105 of 2001 do not suffer from any illegality or irregularity. Both the impugned orders are perfect which do not require any interference by this Hon’ble Court. Therefore, the prayer for quashing the above mentioned impugned orders is refused.”
11. In Criminal Revision No.2349 of 2012 Ganga Singh & Others vs. State of U.P. & others decided on 20.01.2016, following observation was made:
“The above case laws of Hon’ble apex court pertains to complaint filed for punishing the accused persons for the offences committed by them. The proceedings under Section 133 Cr.P.C. can be initiated by District Magistrate or by Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of police officer or other information. So Magistrate is empowered to initiate the proceedings on receiving the report of a police officer or on other information. It is not necessary that proceedings can be initiated on the written report of an individual person, since Section 133 relates to public nuisance. A certain procedure has been made under Section 133 Cr.P.C. to 144 Cr.P.C. and Magistrate has to observe the procedure as contemplated under Section 133 Cr.P.C. to 144 Cr.P.C. Once the proceedings has been initiated then there is no provision in the Chapter X for dismissing the proceedings in default, when learned S.D.M. was apprised that he should have decided the matter on merits, he realized the mistake and recalled the order. Learned Sessions Judge passed the order on the premise that Cr.P.C. does not contain the provision for recalling the order and once an order has been passed then criminal court cannot recall its order. No doubt in Cr.P.C. a detailed procedure for trial of criminal offences has been given but Chapter IX and Chapter X does not relate with the procedure of the criminal trial of offences but pertains to quasi civil proceedings, so the provisions of Cr.P.C. pertaining to the absence of complaint in the complaint case, for dismissal of complaint cannot be applicable, as the application or report moved before S.D.M. for initiating proceedings under Section 133 Cr.P.C. cannot be termed as a complaint and neither the opposite party be termed as an accused. So when the proceedings are of quasi civil nature and order is not final one passed on the merits then learned S.D.M. Was competent to recall its order to decide the matter on merits, as warranted under Section 133 to Section 144 Cr.P.C. So in these circumstances the order passed by learned Sessions Judge cannot be termed as a legal order, as it has interpreted the impugned order passed by learned S.D.M. as a final order.”
12. Recently in Smt. Hema and another vs. State of Uttar Pradesh another 2024 0 Supreme(All) 798, it was observed as under:
“44. The embargo contained in Section 362 having been held to be relaxed in proceedings under Section 125 and the court having not become functus officio after passing of the final order, the recall application which had been filed seeking restoration of the case, could not have been rejected by assigning a reason that the Court was not empowered to entertain the same.”
13. Yet the Kerala High Court at Ernakulam in OP (Crl.). No.204 of 2014 Preeju David vs Minor Mebel, it was held as under:
“In the light of the above, I find no reason as to why the implied jurisdiction of the Court should not be extended to exercise of the powers to meet the ends of justice, unless there is an indication to the contrary, in the statute. Courts exercising power under section 125 to 127 Cr.P.C. are deemed to possess the implied authority to restore the matter, in appropriate cases. In the light of the above finding, the contention of the learned counsel for the petitioner that the impugned order is not legally sustainable is liable to be rejected. I find no reason to interfere with the impugned order, which is liable to be sustained.”
14. The High Court of Orissa at Cuttak in the case of Sachindra Kumar Samal vs Madhusmita Samal @ Swain CRLMC No.1943 of 2022 decided on 11.11.2022 held as under:
“7. When a proceeding of maintenance is dismissed on account of default and if it is claimed that the court lacks jurisdiction to restore it in absence of any provision, how it could have been dismissed for non-prosecution, again for having no provision in the Cr.P.C. According to the Court since such is action is predominantly civil in nature, the power to restore a proceeding under Section 125 Cr. P.C. is inherent. An application for maintenance is not a complaint as defined in Section 2(d) Cr.P.C. so to hold that in the event of its dismissal for default, the bar contained in Section 362 Cr. P.C. would be attracted. In the decision of Kehari Singh (supra), it is observed that if there is any Sachindra Kumar Samal Vrs. Madhusmita Samal @ Swain & Another lacuna in the statute, then a court is obliged to pass a judicial order to give effect to the intent and purport of the law and therefore, a proceeding under Section 125 Cr.P.C. even though dismissed for non-appearance can still be restored. With due respect, this Court is in disagreement with the decision of the Calcutta High Court in Md. Yusuf T. Attarwala (supra). Even though the proceeding is before the Family Court which is essentially dealing with the claim of maintenance is having authority to recall and restore a proceeding under Section 125 Cr.P.C. disposed of and dismissed due to non-appearance of the applicant. It is reiterated that the power to restore in such proceedings in absence of provision in Section 126 Cr.P.C. is implicit as has been held in Kehari Singh (supra) supported by other decisions with similar view. So, the Court is not persuaded to accept the contention of Mr. Panda, learned counsel for the petitioner on the point of maintainability vis–vis restoration of the proceeding. As a corollary, the learned Family Court cannot be said to have committed any error or illegality in entertaining the restoration application moved by opposite party No.1 and rightly received the same and proceeded further.”
15. Applying the principles of law in the above noted decision, in the facts and circumstances of the case at hand an irresistible conclusion stands drawn that neither there is any bar in entertaining a recall nor the Presiding Officer becomes functus officio in that regard. Since the court below was within its jurisdiction to entertain the recall application, thus, there is no question of non maintainability of the same. As regards the submission of learned counsel for the applicant that there was no delay condonation application accompanied with the restoration application, thus, without condoning the delay the restoration application could not be allowed is meritless for the simple reason that in the restoration application several grounds were taken occasioning delay in filing the application.
16. It is all together different that the said grounds are valid or not but once the court below has exercised its jurisdiction in allowing the restoration application while recalling the order dismissing the application, the courts should be slow in interfering until and unless there are exceptional circumstances. So far as the reliance placed upon the judgement of the Hon’ble Apex Court in Pathapati Subba Reddy (Died) By L.Rs. & Ors. vs The Special Deputy Collector (LA) 2024 0 Supreme(SC) 322 is concerned, there is no quarrel to the proposition of law curled out therein. However, the said judgment would not be of any aid and assistance to the applicant.
17. Cumulatively analyzing the case from the four corners of law even otherwise a liberal approach is to be adopted as proceeding under Section 125 Cr.P.C. is a beneficial piece of legislation for the women, thus, this Court does not find present case to be a fit case for invoking the inherent jurisdiction, accordingly, the application stands rejected.
Order Date :- 4.6.2025
S.A.
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