SC:Magis. doesn’t become functus officio after passing order u/s 125 CrPC

The Hon’ble Supreme Court, on 19th February 2020, in the matter of Sanjeev Kapoor vs. Chandana Kapoor & Ors. pronounced that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C.

The Hon’ble Supreme Court observed that:

The embargo put on the criminal court to alter or review its judgment is with a purpose and object. (Para 18)

Criminal justice delivery system does not cloth criminal court with power to alter or review the judgment or final order disposing the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal Court or passing final order disposing the case the Court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law. (Para 18)

Whether the embargo contained in under Section 362 Cr.P.C. prohibiting the court to alter or review its judgment or final order disposing the case applies to order passed under Section 125 Cr.P.C. ?

(Para 20) Section 362 Cr.P.C. begins with the word “save as otherwise provided by this Code or by any other law for the time being in force”. The above expression clearly means that rigour as contained in Section 363 Cr.P.C. is relaxed in following two conditions: –

i) Save as otherwise provided by the code of Criminal Procedure.

ii) any other law for the time being in force.

Section 362 Cr.P.C., thus, although put embargo on the criminal Court to alter or review its judgment or final order disposing the case but engrafted the exceptions as indicated therein. The legislature was aware that there are and may be the situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other law for the time being in force. (Para 21)

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. (Para 23)

In Section 125 Cr.P.C the expression used is “as the magistrate from time to time direct”. The use of expression ‘from time to time’has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. Use of expression ‘from time to time’ in is exercise of jurisdiction of Magistrate in a particular case. (Para 24)

The above Legislative Scheme indicates that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. 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. (Para 25)

Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125. The Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C. (Para 26)

Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted. (Para 29)

Copy of judgement: 19-Feb-2020

-Adv. Tushar Kaushik

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