HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.7224 of 2009 Dated : 10.09.2009 Between : M.Dananayaka ….. Petitioner a n d 1) Smt.B.Sakunthalamma 2) The State of A.P. ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.7224 of 2009 ORDER: Heard Sri P.Vamsheedhar Reddy, learned counsel representing Sri Suresh Kumar Reddy Kalava, learned counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the second respondent. No notice is being ordered to the first respondent as the matter is being disposed of at the stage of admission. The petitioner is aggrieved by the order passed by the Judicial Magistrate of First Class, Pakala, Chittoor District, in Crl.M.P.No.33 of 2009 in M.C.No.3 of 2008 on 25.07.2009 allowing the petition to receive the rejoinder filed by the petitioner in the maintenance case in answer to the counter filed by the petitioner herein to the maintenance case. The learned Magistrate observed that, in the light of the decision reported in 1997 (1) DMC 525, proceedings under Section 125 of the Code of Criminal Procedure can be treated as civil in nature and if so, receiving the rejoinder may cause no prejudice to the petitioner herein and that the merits of the allegations can be looked into only at the time of enquiry. Consequently, the learned Magistrate decided to receive the rejoinder. The petitioner is mainly aggrieved by the attempt of the learned Magistrate to treat the proceedings under Section 125 of the Code of Criminal Procedure as more civil in nature than criminal and contended that, under Section 125 of the Code of Criminal Procedure, the rejoinder could not have been received without mentioning any specific section or provision of law. A perusal of the relevant provisions in Section 125 and Section 127 of the Code of Criminal Procedure ( for short, ‘the Code’ ) shows that the approach of a person under Section 125 of the Code for maintenance will be governed by the procedure prescribed by Section 126 of the Code and any alteration in such allowance due to any change in circumstances will be governed by Section 127 of the Code. It is seen from sub-Section 2 of Section 126 of the Code, that the evidence in the proceedings should be taken in the presence of the person against whom the order of payment of maintenance is proposed to be made. It is also stated that the evidence shall be recorded in the manner prescribed for summons cases. The Magistrate is also given a specific power to proceed ex parte in the circumstances mentioned in the proviso to sub-section 2 of Section 126 of the Code and also to set aside an ex parte order under the situations specified by the said provision. The procedure, therefore, for recording the evidence, is as prescribed for summons cases and in the procedure prescribed by Chapter XX of the Code, for trial in summons cases also, no specific reference is made to receipt of any written pleadings, like in Sections 125 to 127. It is only Section 314 of the Code that specifically referred to a party being permitted to submit a memorandum of arguments. No other provisions under the Code, or the Criminal Rules of Practice, appear to be having relevance to the question. Further, it is admitted that, as a matter of accepted convention and practice, a copy of the petition under Section 125 or 127 of the Code is served along with the notices to the respondents therein and the respondent therein is permitted to file a written counter to the petition. As the receipt of the petition and the counter in writing is in accordance with practice and convention, receiving the rejoinder in response to the written counter can also be considered as per practice and convention. The rejoinder to the written counter places the version of the first respondent herein in answer to the counter filed by the petitioner herein in response to the main maintenance case before the Court and it is for the Court to appreciate the acceptability and genuineness of such pleadings with reference to the oral and documentary evidence to be placed before it during the enquiry, as rightly observed by the learned Magistrate. Therefore, nothing, which amounts to an abuse of process of law, can be said to have been made out against the impugned order and it is not a fit case for exercise of inherent jurisdiction of this Court. The criminal petition is dismissed. ______________________ G.BHAVANI PRASAD, J 10th September, 2009 SUR