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The Magistrate Does Not Become Functus Officio u/s 125 of Cr.P.C
Supreme to held that the bar u/s 362 of Criminal Procedure Code (Cr.P.C) cannot apply to the magistrates for reviewing their order u/s 125 of Cr.P.C.
In the of Sanjeev Kapoor v/s Chandana Kapoor, while deciding the appeal before it, The Supreme Court held that the bar u/s 362 of Cr.P.C cannot refrain the magistrates from performing their powers u/s 125 of the code.
Under section 125 of Cr.P.C defines, order, and procedure for the order of maintenance of wife, children, and parents.
However, section 362 of Cr.P.C states that no court is allowed to alter or to change its judgment or final order given while disposing of the case except it can, to correct the clerical and arithmetical error.
Facts of the case:
In the given case of Sanjeev Kapoor v/s Chandana Kapoor,
The wife Chandana Kapoor filed an application against her husband u/s 125 of Cr.P.C for the maintenance of her and her children before the Family Court.
In March 2013, the Appellant filed a divorce petition against his wife. However, on the reconciliation efforts made by the Family Court, parties settled the matter amicably on the terms that the Appellant was to pay Rs.25000/- towards the maintenance of the wife and children with effect from July 2015 up to April 2017 and with effect from May 2017, the amount of Rs.25, 000/- per month was to be deposited the amount directly into the account of Chandana Kapoor before 10th of every month. These arrears were to be paid within six months.
Later the parties were suggested to file a divorce under the mutual consent before the court. The Family Court disposed of the maintenance petition by giving the order of 6th May 2017.
The Appellant, Sanjeev Kapoor, paid the maintenance only for four months, i.e Rs.1, 00,000/- the Respondent for the maintenance filled an application in 2018, u/s 125(3) for the enforcement of order given on 6th May 2017.
The application filed by the respondent was rejected; therefore the Respondent filed another application for recall of the order dated 6th May 2017 and stated that the appellant did not deposit the arrears of the amount as agreed and total amount paid by the appellant was only Rs.75,000/- for the maintenance.
The Respondent prayed that order 06.05.2017 may be recalled and application under 4 Section 125(3) Cr.P.C. be restored and to be decided.
The Appellant filed an objection in the Court against the application filed by the Respondent. In the objection, the Appellant stated that the arrears were stopped as the Respondent herself backed from the terms of the order.
The learned Additional Principal Judge of the Family Court set aside the order dated 06.05.2017 and restored the petition under Section 125 Cr.P.C. Aggrieved by the decision of the Family Court the Appellant moved to the High Court, by applying u/s 482, which was also rejected by the High Court. Aggrieved by the order of High Court the Appellant filed an appeal before the Supreme Court under Appeal no. 286 of 2020.
Issues:
The filing of an appeal gave a rise to issues, such as,
- Whether the District Judge, Family Court had the power to set aside the order or not?
- Whether the High Court committed error by not setting aside the order given by the Additional Principal Judge?
- Whether bar u/s 362 of Cr.P.C can stop the Magistrate from reviewing its order u/s 125 of Cr.P.C?
Judgment:
After hearing all the sides of the party on 19th February 2020, the Supreme Court with its fair and just sense, passed the Judgment, stating that,
The Magistrate is empowered to cancel an order passed under Section 125(1) Cr.P.C. on the fulfillment of certain conditions.
The Magistrate can exercise its powers under section 125 of Cr.P.C. he does not become 'Functus Officio'. Therefore, he can review and re-examine his decision or order given under section 125 of Cr.P.C.
The bar u/s 362 of Cr.P.C. cannot be applied to powers of the Magistrates u/s 125 of Cr.P.C.
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