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Magistrate can review order passed U/s 125 CrPC; bar U/s 362 CrPC not applicable

Magistrate can review order passed U/s 125 CrPC; bar U/s 362 CrPC not applicable

Sanjeev Kapoor Vs Chandana Kapoor and Ors

Supreme Court


Criminal Appeal Nos. 286 of 2020

About/from the judgment:

The Supreme Court held that the power of a Magistrate to alter its orders passed under Section 125 of the Code of Criminal Procedure (CrPC) for maintenance are not hit by the embargo entailed in Section 362, which bars criminal courts from altering their orders.


Section 362 of the Code states that no court can alter or review a judgment or a final order once it has been signed, except to correct a clerical or arithmetical error. Whether this embargo also applies to orders passed in maintenance cases under Section 125 of the CrPC was the question for consideration before the Court in the instant case.


After a Family Court had disposed of a maintenance petition under Section 125 of the CrPC, it was subsequently revived at the behest of the respondent in the case. The appellant had approached the Punjab and Haryana High Court seeking for the subsequent order passed by the Family Court to be set aside. The High Court, exercising its jursidcition under Section 482 of the CrPC, dismissed the plea. This brought the appellant to the Supreme Court.


The court while considering the matter, delved into the legislative intent behind Section 125 of the Code and found that the provision for maintenance falls under the category of social justice legislation.


The Court also touched upon the question of whether an order passed under Section 125 of the CrPC becomes functus officio for the embargo under Section 362 to apply.


Answering this question in the negative, the Court said that a closer reading of the Section itself shows that a provision for cancellation or alteration of an order exists.


"The closer look of Section 125 Cr.P.C. itself indicates that the Court after passing judgment or final order in the proceeding under Section 125 Cr.P.C. does not become functus officio. The Section itself contains express provisions where order passed under Section 125 Cr.P.C. can be cancelled or altered which is noticeable from Section 125(1), Section 125(5) and Section 127 of Cr.P.C." - Supreme Court


The judgment also points out that Section 125 contains the phrase "from time to time", and that the same phrase holds a specific meaning so as to indicate that a Magistrate may exercise jurisdiction under this Section from time to time. An order passed under this Section, therefore, does not attain finality or is not functus officio, the Court has observed.


An express power for cancellation of orders once passed under Section 125 is also granted to the Magistrate under Section 125 (5), the Court points out in this judgment.


"By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions." - Supreme Court


The Court makes note of the wording and phrasing of the embargo section under Section 362, which leaves room for exceptional cases by containing the words "save as otherwise provided by this Code". Further, Section 127(2) of the Code empowers the Magistrate to cancel or alter any order passed under Section 125.


Therefore, the Court concluded that Sections 125(5) and 127 would amount to the exceptions provided for in Section 362 and therefore, an order in a maintenance case under Section 125 is not barred from being altered or cancelled by the Magistrate.

Read the Judgment


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