CRIMINAL MISCELLANEOUS No.23713 OF 1998 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- Baidhya Nath Chaudhary, Son of Sri Gopi Chaudhary, resident of Village-Baradari Katra, P.S. Bhagwan Bazar, District- Saran ----------- Petitioner Versus 1. THE STATE OF BIHAR 2. Renu Devi, D/O Baidnath Chaudhary, resident of Motijhil, Ayodhya Prasad Lane, P.S. Town District-Muzaffarpur ----------- Opp.Parties. ----------------- For the petitioner: S/Sri Neeraj Kumar „Sanidh‟ Mrs.Ranjana Sinha Subesh Sharma, Advocates For the State: Sri Sunil Kumar Pandey, A.P.P. For Opp.Party no.2: None. ---------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The petitioner , who is husband of Opp.Party no.2 , has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 22.3.1997 passed in Maintenance Case No.8 of 1996 , whereby learned Sub Divisional Judicial Magistrate, (West) Muzaffarpur has allowed the petition filed on behalf of Opp.Party no.2 and directed the petitioner to pay maintenance allowance to Opp.Party no.2, failing which coercive steps would be taken for realization of due amount of maintenance allowance . The petitioner has further prayed for quashing of order dated 11.9.1998 passed in Cr. Revision No.106 of 1997 by learned 1st Addl. Sessions Judge, Muzaffarpur, whereby the revision preferred by the petitioner was rejected. 2. In the petition filed by the petitioner, fact of the case has not been stated in detail, rather in cryptic manner certain facts were stated. 2 However, after going through the impugned orders, actual fact has come to fore. Opp.Party no.2 is married wife of the petitioner. However, subsequently, due to non-maintenance by the petitioner, a maintenance case was filed by Opp.Party no.2 under Section 125 of the Code of Criminal Procedure, which was numbered as Case No.25 of 1980. The said case was filed in the court of learned Chief Judicial Magistrate, Muzaffarpur, which was transferred to the learned Sub Divisional Judicial Magistrate (West), Muzaffarpur. Finally on 17.5.1983, the learned Magistrate directed the petitioner to make payment of maintenance @ Rs.300/- per month from the date of filing of the petition. Since the petitioner did not bother to maintain Opp.Party no.2 despite the order of the court, the Opp.Party no.2 was constrained to file a petition for realization of the maintenance amount from the petitioner. Thereafter, the petitioner started living with Opp.Party no.2 and in the meanwhile, total amount of Rs.5000/- was paid to Opp.Party no.2. During the said period, the petitioner also cohabited with Opp.Party no.2 and, as such, Opp.Party no.2 was blessed with a son during the said period. Subsequently, the petitioner again stopped visiting the house of Opp.Party no.2. In the meanwhile, after the order of the maintenance passed under Section 125(1) of the Code of Criminal Procedure in favour of Opp.Party no.2, the petitioner approached this Court by way of filing a petition under Section 482 of the Code of Criminal Procedure vide Cr.Misc.No.3513 of 1985 , which stood dismissed. After dismissal of Cr.Misc.No.3513 of 1985 , the petitioner again persuaded Opp.Party no.2 for settling the dispute and, as such, on 15.12.1994 a compromise petition was filed , wherein it was indicated that both the parties had now started living together and, as such, there was no need to make payment of the maintenance allowance. Since 3 the petitioner had stopped making payment of maintenance to Opp.Party no.2 prior to compromise on the prayer made by Opp.Party no.2 distress warrant was issued for the purposes of realization of the dues. On the basis of said compromise petition, learned Sub Divisional Judicial Magistrate passed an order for withdrawal of distress warrant and in view of petition filed by Opp.Party no.2, the case was disposed of. After the withdrawal of the distress warrant as well as disposal of the proceeding for realization of the arrear dues of the maintenance allowance, the petitioner again neglected Opp.Party no.2 and, as such, Opp.Party no.2 was again constrained to file a petition for issuance of distress warrant against the petitioner for realization of maintenance allowance. The petitioner also filed show cause on 16.10.1996 praying therein to dismiss the petition filed by Opp.Party no.2 on the ground that in view of order dated 15.12.1994, the original case had come to its natural death. However, the learned Sub Divisional Judicial Magistrate by its order dated 22.3.1997 allowed the petition filed by Opp.Party no.2 and directed the petitioner to make payment of maintenance allowance to Opp.Party no.2 after 15.12.1994, failing which coercive step was directed to be taken for realization of dues of maintenance allowance. 3. Aggrieved with the order of the learned Sub Divisional Judicial Magistrate dated 22.3.1997, the petitioner filed a revision vide Cr.Revision No.106of 1997 /16 of 1997, which stood rejected on 11.9.1998. After rejection of the Cr.Revision No.106of 1997 /16 of 1997, the petitioner approached this Court by filing the present petition. On 15.12.1998 , notice was directed to be issued against Opp.Party no.2 and in the meanwhile operation of the order impugned in Maintenance Case No.8 of 1996 was directed to remain stayed and on 7.5.1999, the petition was admitted for 4 hearing . 4. Opp.Party no.2 after appearance filed a petition for vacating the stay order vide I.A.No.589 of 2000. However, prayer for vacating the stay was rejected on 6.7.2000. Accordingly, the order of stay is still continuing. 5. Sri Neeraj Kumar “Sanidh” , learned counsel appearing on behalf of the petitioner, while challenging the impugned order passed by the learned Sub Divisional Judicial Magistrate on 22.3.1997, has argued that once the learned Magistrate on the basis of compromise had withdrawn the distress warrant as well as disposed of the case, the learned Magistrate had become functus officio to pass any subsequent order . It was argued that by way of passing order dated 22.3.2003, the learned Magistrate had virtually recalled the order dated 15.12.1994, whereby the case was already disposed of on the basis of compromise. Sri Sanidh, learned Counsel for the petitioner has argued that in the Code of Criminal Procedure , there is no provision to recall an order, if the same has already been signed save and except for correcting clerical or typographical mistake. Learned counsel for the petitioner has firstly referred to a Judgment of the Hon’ble Supreme Court, reported in AIR 1977 SC 2432 ( Bindeshwari Prasad Singh Vs. Kali Singh). He has specifically referred to paragraph-4 of the said Judgment passed in Bindeshwari Prasad Singh’s case (Supra). For better appreciation, it would be appropriate to quote the same, which is as follows: “4.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 judicial order after giving reasons that he was satisfied that a case was made out for recalling the 5 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. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A, which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate 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 23.11.1968, the Sub Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. 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 recalling the said order, would fall to the ground including order dated 3.5.1972 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. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. 6. Learned counsel for the petitioner on the same point has further referred to paragraph 10 of a Judgment, reported in (2001)1 SCC 169 ( Hari Singh Mann Vs. Barbhajan Singh Bajwa & Ors), in which it has been 6 held : “ Section 362 of the Code mandates that no court, when it has singed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmedical error. The section is based on an acknowledged principle of law 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 fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.” 7. On the sole ground that the impugned order was without jurisdiction, the petitioner had challenged the order before the revisional court and revisional court i.e. learned 1st Addl.Sessions Judge, Muzaffarpur by its order dated 11th September 1998 passed in Cr.Revision No.106 of 1997 /16 of 1997 had rejected the plea of the petitioner. Sri Neeraj Kumar”Sanidh” has again reiterated the same point and it was argued that on the ground of order being without jurisdiction, same is liable to be set aside. 8. Despite the fact that Opp.Party no.2 had entered her appearance through an Advocate and filing of Interlocutory Application for vacating the order of stay, at the time of hearing, none appeared on behalf of Opp.Party no.2. However, Sri Sunil Kumar Pandey, learned Addl.Public Prosecutor has supported both the orders passed by the court below and it was argued that the petition has got no merit and the said is fit to be 7 rejected. 9. Besides hearing learned counsel for the petitioner and the State, I have minutely examined the materials available on record, particularly the order dated 11th September,1998 passed in Cr.Revision No.106of 1997 /16 of 1997 and order dated 22.3.1997 passed by the learned Sub Divisional Judicial Magistrate, Muzaffarpur. Of course, from the pleading made by the petitioner, no clear-cut picture has emerged, but after going through both the orders, many facts have come to the notice of the Court. On the basis of materials available on record, the Court is of the opinion that right from the beginning, the petitioner one way or the other had tried to frustrate the order which was passed under Section 125 (1) of the Code of Criminal Procedure in favour of Opp.Party no.2, whereby long back on 17.5.1983, the learned Sub Divisional Judicial Magistrate had directed the petitioner for making payment of maintenance allowance of Rs.300/- per month to Opp.Party no.2. On several occasions after steps were taken by Opp.Party no.2, the petitioner persuaded Opp.Party no.2 not to proceed with realization of maintenance allowance. The petitioner, who approached this Court by filing Cr.Misc.No.3513 of 1985, which stood rejected, has not even bothered to mention in the present petition that earlier his petition was rejected. After his petition was rejected by this Court and distress warrant was already issued on the prayer made by Opp.Party no.2, the petitioner in a well designed manner persuaded Opp.Party no.2 for entering into a compromise and thereafter a compromise petition was filed vide Annexure-1 to the petition. In the compromise petition, it was indicated that all the dues of the maintenance was received by her and since both the parties had started to live together, there was no 8 need to pay further maintenance and, as such, on the same day i.e. on 15.12.1994, distress warrant was directed to be withdrawn and the petition filed by Opp.Party no.2 was disposed of. After going through the order dated 15.12.1994, it appears that only that portion of the proceeding was withdrawn, whereby the order passed under Section 125 (1) of the Code of Criminal Procedure was to be executed. The said order was not to the extent of recalling or disposal of the impugned order, which was passed under Section 125 (1) of the Code of Criminal Procedure , whereby maintenance @ Rs.300/- per month was directed to be paid by the petitioner to Opp.Party no.2, which was passed on 17.5.1983. From the materials available on record, the Court is satisfied that the order passed under Section 125 (1) of the Code of Criminal Procedure dated 17.5.1983 was never cancelled or recalled at subsequent stage either under Section 125 (5) or under the provision of Section 127 of the Code of Criminal Procedure. For better appreciation, the Court is of the opinion that the provisions contained under Sections 125 and 127 of the Code of Criminal Procedure can be quoted , which are as follows: “125. Order for maintenance of wives, children and parents,--(1) if any person having sufficient means neglects or refuses to maintain— (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or ( c ) his legitimate or illegitimate child ( not being a married daughter) who has attained majority , where such child is, by reason of 9 any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority , if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any port of each month‟s allowance remaining unpaid after the execution of the warrant , to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on 10 which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. (4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery , or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” “127. Alteration of allowance.—(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the while shall not be exceeded. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly, (3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that--- (a) the woman has, after the date of such divorce , remarried , cancel such order as from the date of her remarriage: 11 (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce , cancel such order--- (i) In the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman: (C) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce , canel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance in pursuance of the said order.” 10. After going through the aforesaid provisions, it is evident that once the order under Section 125(1) Cr.P.C. is passed, the maintenance allowance can be realized in view of sub-section (3) of Section 125 of the Code of Criminal Procedure. However, in special circumstances, the same can be cancelled under sub section (5) of Section 125 of the Code of Criminal Procedure or it can be cancelled or stayed in view of Section 127 of the Code of Criminal Procedure. In the present case, the petitioner has not at all asserted as to whether the order passed under Section 125 (1) of the Code of Criminal Procedure was ever stayed or cancelled on the petition filed by the petitioner. Meaning thereby that order of maintenance, which was passed in the year 1983 was still operative and subsisting and, 12 as such, even after compromise, i.e. order dated 15.12.1994, Opp.Party no.2 was entitled to approach the same court for taking steps for realization of maintenance allowance. In case there was any breach in view of provision contained in the Code of Criminal Procedure even after withdrawal of the distress warrant at a particular stage, the aggrieved Opp.Party was entitled to approach the Magistrate for issuance of process for realization of the maintenance allowance as per the order of maintenance at any subsequent stage and the same cannot be considered as reviewing or recalling of the earlier order and, as such, bar imposed under Section 362 of the Code of Criminal Procedure in the present context was not applicable . The present case is squarely covered by a Judgment of Hon’ble Apex Court, reported in 1979 Cr.L.J 198 (Bhupinder Singh Vs. Daljit Kaur. For better appreciation, it is advisable to quote paragraph 7 of the Judgment in Bhupinder Singh’s case ( Supra), which is as follows: “7. We are concerned with a Code, which is complete on the topic and any defence against an order passed under S.125 Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. It the husband has a case under S.125 (4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of Section 125 (4) or (5) or S.127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence.” 13 11. In view of the facts and circumstances as well as law laid down by the Hon’ble Apex Court, there is no point to interfere with either of the orders. The learned Sub Divisional Judicial Magistrate has rightly and legally passed the impugned order, which was also approved by the learned Addl.Sessions Judge, Muzaffarpur in Cr.Revision No.106 of 1997/16 of 1997. Both the orders are based on good reason and in accordance with law. 12. Accordingly, there is no merit in the present petition and the petition stands rejected. 13. In view of rejection of this petition, interim order of stay stands vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court, Patna Dated : the 24th January,2011 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J.)