Sabita Sahoo vs Capt. Khirod Kumar Sahoo-20/03/1990

It would be reasonable to assume that the Magistrate is vested with all ancillary powers necessary for the purpose of effectual and proper exercise of jurisdiction vested in him under Section 125, Cr.P.C. The power to permit the petitioner to amend the application under Section 125, Cr.P.C. is, in my view, an ancillary power of a purely procedural nature.

Orissa High Court

Sabita Sahoo vs Capt. Khirod Kumar Sahoo

DATE: 20 March, 1990

Equivalent citations: II (1990) DMC 435

Bench: D Mohapatra

JUDGMENT

D.P. Mohapatra, J.

1. The short question that arises for determination in this case is whether in a proceeding under Section 125, Criminal Procedure Code the Magistrate has the power to permit the applicant to amend the application filed under the section seeking maintenance.

2. In this petition filed under Sections 399, 401 and 482 of the Code of Criminal Procedure, the petitioner has prayed to quash the order passed by the S.D.J.M., Bhubaneswar on 23-10-1989 in Criminal Misc. Case No. 38 of 1988 rejecting her petition to amend the application under Section 125, Cr.P.C.

3. The petitioner claiming to be the wife of the opp. party filed the application under Section 125, Cr.P.C. in the Court of the S.D.J.M., Bhubaneswar for maintenance from the opp. party which was registered as Criminal Misc. Case No. 37 of 1988. During pendency of the case she filed the petition purportedly under Order 6, Rule 17, C.P.C. praying to make certain amendment in the application filed under Section 125, Cr.P.C., the essential purpose of which was to correct the date of marriage given in the application and to elucidate certain facts stated therein. The opp. party objected to the prayer mainly on the ground that the provision in Order 6, Rule 17, C.P.C. was not applicable to the proceeding and hence the petition was not maintainable. The learned Magistrate accepted the objection and rejected the petition for amendment.

4. From the discussions in the impugned order it is evident that, the said ground for rejection of the prayer for amendment of the application under Section 125, Cr.P.C. was that Order 6, Rule 17, C.P.C. has no application to the proceeding under Section 125, Cr.P.C., since it was not a proceeding of civil nature and the Criminal Procedure Code makes no provision enabling the Magistrate to permit amendment of the application under Section 125, Cr.P.C. The learned Magistrate relied on the decision of this Court in the case of Norbet Kispatta v. Mst. Tersa Kerketa, reported in 1971 Criminal Law Journal 1496.

5. Shri G.S. Rath, learned counsel appearing for the petitioner submitted that the learned Magistrate was not right in holding that he had no power to permit the petitioner to amend her application under Section 125, Cr.P.C. Shri Alok Samantaray, learned counsel appearing for the opposite party on the other hand supported the impugned order relying on the aforementioned decision of this Court.

6. I have carefully perused the decision of this Court in the case of Norbet Kispetta (supra). In my view, the learned Magistrate did not correctly interpret the ratio in the decision to mean that in a proceeding under Section 125, Cr.P.C. (Section 488 of the Criminal Procedure Code, 1898) the Magistrate has no power to permit amendment of the application. In that case the Court was considering the correctness of the contention that the proceeding under Section 488, Cr.P.C. being of a civil nature, the petition filed is in the nature of a plaint in the civil suit and therefore the petitioner must be bound down to the averments made in the petition. This Court negatived the contention relying on the decision of the Supreme Court in the case of Nand Lal Misra v. Kanhaiya Lal Misra, reported in AIR 1960 S.C. 882 that though the relief given under Chapter XXXVI which includes Section 488, Cr.P.C. is essentially of a civil nature, all the same the proceedings under the said Chapter are not civil proceedings so as to attract the provisions of the Civil Procedure Code as the said proceedings are wholly governed by the provisions of the Criminal Procedure Code and that being so the provisions of Chapters VI, VII and VIII, Civil Procedure Code relating to pleadings in a civil suit do not apply to a petition under Section 488, Cr.P.C. In essence, what was held by this Court was that the rigour of the rule of pleading does not apply to a proceeding under Section 488, Cr.P.C. and the applicant is not to be bound down to the statements contained in the application. This Court did not deal with the question of the Court’s power to permit amendment of the application under Section 488, Cr.P.C. Therefore the learned Magistrate was not right in concluding from the aforementioned decision that he had no power to consider the petitioner’s prayer to amend her application under Section 125, Cr.P.C.

7. Section 125, Cr.P.C. vests power in a Magistrate of the first class, inter alia, to order any person to make a monthly allowance for the maintenance of his wife if he is satisfied that the said person having sufficient means has neglected or refused to maintain his wife unable to maintain herself. Keeping in view the intent and purpose in enacting the provision and the purpose sought to be achieved it would be reasonable to assume that the Magistrate is vested with all ancillary powers necessary for the purpose of effectual and proper exercise of jurisdiction vested in him under Section 125, Cr.P.C. The power to permit the petitioner to amend the application under Section 125, Cr.P.C. is, in my view, an ancillary power of a purely procedural nature. Therefore, in the absence of any provision in the Criminal Procedure Code prohibiting exercise of such power the learned Magistrate could permit amendment of the application in exercise of the ancillary power. Further, the purpose of the amendment, as noticed earlier, was to correct the date of marriage stated in the application and to elucidate certain facts stated therein. The amendment was intended to put the opp. party to notice of the facts and thereby help the Magistrate in conducting the proceeding fairly and properly. Therefore though the learned Magistrate was right in holding that the provision of Order 6, Rule 17, C.P.C. in terms did not apply to the proceeding under Section 125 Cr.P.C., he was not right in holding that he had no jurisdiction to permit the petitioner to amend her application. If any authority is necessary to support this view, I may refer to the decision of the Bombay High Court in the case of Haribhau Kisan Patil v. Manorma and Anr., reported in II (1985) DMC 230. In that case the Bombay High Court relying on two earlier decisions of the Court reported in 1980 Mh. L.J. 871 (Baburao Akaram v. Kusum Baburao) and 1981 Mh. L.J. 907 (Marotrae v. Chandrakanta) held that the Magistrate had jurisdiction to allow amendment of the application under Section 125, Cr.P.C.

8. The point can also be examined from another angle. The application in this Court has been filed under Section 482, Cr.P.C. Though the subordinate criminal Courts are not vested with inherent power, there is no doubt that this Court has the inherent power (See AIR 1977 S.C. 2432 : Bindeshwari Prasad v. Kali Singh). Therefore, the petition filed by the petitioner to amend her application under Section 125 Cr.P.C. can also be considered by this Court in exercise of its inherent power. In the facts and circumstances discussed in the fore going paragraphs I would not hesitate to exercise such power since, as I have already held, the proposed amendment would help the learned Magistrate in fair and proper adjudication of the matter and will serve the ends of justice.

9. Thus viewed from any angle, I do not find any difficulty in holding that the petition filed by the petitioner to amend her application under Section 125, Cr.P.C. should be allowed. Accordingly the revision petition is allowed, the impugned order is set aside and the petition filed by the petitioner to amend her application under Section 125, Cr.P.C. is allowed. The learned Magistrate is directed to proceed to dispose of the proceeding in accordance with law.

D.P. Mohapatra, J.

20 March, 1990


Connected

%d bloggers like this: