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Prashant More   09 June 2018

In crpc 125 applicant staying absent

Dear Learned Members of this Group,

Can someone advise me as what needs to be done  in this case where the Applicant has been simply delaying the matter since a year and half. Last August 2017 an order was passed in interim where her application was dismissed on the grounds of certain proofs submitted by me. She further has appealed in the Dist. Court in the month of November '17 but did not receive the notice but on viewing it on eCourt site gave vakalatnama on 15th Dec. where again six months have passed where 8 dates have gone by and nothing is happening. The Applicant is not coming to the court. Her Advocate is also not coming since last three dates. Currently I am myself handling the case as have nothing to pay to the Advocate as am seriously in debts.

Would like to know as How can I expedite the matter. 



 6 Replies

Rahul   09 June 2018

The court has the power to dismiss the case u/s. 125 Cr. P. C. on the ground of non appearance of petitioner and her advocate. You Can request the Court for dismissal of the Petiton in the next hearing. However if the Petitioner or her advocate appears in the next hearing the court may resume the due hearings. 
 

S.256 of cr.p.c. (not under Order IX of C.P.C.) gives the magistrate to dismiss the complaint for default and non-prosecution, if complainant does not appear.  Move application under this section.  It can be restored if complainant comes out with application satisfying the court for her non-appearance on  earlier occasions.

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2 Like

Prashant More   09 June 2018

Thanks you Rahul for your prompt reply.

regards

Prashant.

TGK REDDI   09 June 2018

If the magistrate hesitates to dismiss the Complaint, pray for costs.

Kumar Doab (FIN)     09 June 2018

You can benefit from the post and pick up relevant points and also from the comprehensive judgments;

Supreme Court of India

Savitri W/O Shri Govind Singh ... vs Shri Govind Singh Rawat

 

https://indiankanoon.org/doc/1194071/

 

ACT:
     Code of  Criminal Procedure,  1973, s.  125  -  Whether
Magistrate can grant interim maintenance.

 

 

 
HEADNOTE:
     The petitioner filed an application under s. 125 of the
Code of      Criminal Procedure,  1973 before the Magistrate for
an  order   against  her   husband  directing    him  to      pay
maintenance. Thereafter she filed another application for an
interim order  directing her husband to pay a reasonable sum
by  way       of  maintenance   pending  disposal  of  the   main
application. The  Magistrate declined  to  make   an  interim
order on  the ground  that there was no express provision in
the Code enabling a Magistrate to pass such an order.
     The petitioner  filed special  leave petition  in this
Court.
     Disposing of the petition,
^
     HELD :  1. There  is no  express provision   in the Code
which authorises  a Magistrate to  make  an  interim  order
directing payment  of maintenance  pending  disposal  of  an
application  for   maintenance.       The   Code  does  not   also
expressly prohibit the making of such an order- [617 E]
     2. The  provisions contained  in 88.  125, 126, 127 and
128 of      the Code  of Civil Procedure 1973 show that they are
intended to  provide for  a preventive     remedy for  securing
payment of  maintenance which  can be granted quickly and in
deserving cases with effect from the date of the application
itself. [618 C] G
     3. The  rate of  maintenance that     can be awarded under
the Code  is limited even though under the law governing the
parties a  competent civil  court may  order  payment  of  a
larger sum  in appropriate  cases.  The     civil courts      have
inherent power to grant interim maintenance pending disposal
of the suit for maintenance. [618 C-D]
     4.The Jurisdiction  of a Magistrate under Chapter IX of
the Code  is not  strictly a  criminal     Jurisdiction.  While
passing an
616
order under  that Chapter asking a person to pay maintenance
to his wife, child or parent, the Magistrate is not imposing
any punishment    on such person for a crime committed by him.
Chapter IX  of    the  Code  contains  a  summary      remedy      for
securing some  reasonable sum by way of maintenance, subject
to a decree, if any, which may be made in a civil court in a
given case  provided the  Personal Law applicable to the per
on concerned authorises the enforcement of any such right to
maintenance. The  Code, however,  provides a quick remedy to
protect the  applicant against starvation and    to tide over
immediate difficulties.  Chapter IX  of the Code does not in
reality create any serious new obligation. [618 E-G]
     5. It  is the  duty  of  the  Court  to  interpret       the
provisions in  Chapter IX  of the Code in such away that the
construction placed on them would not defeat the very object
of  the       legislation.    In   the  absence   of   any  express
prohibition, it is appropriate to construe the provisions in
Chapter IX  as conferring an implied power to the Magistrate
to direct  the person  against whom  an application  is made
under s.  125 of  the Code to pay some reasonable sum by way
of maintenance    to the      applicant pending  final disposal of
the application. [619 E-G]

Kumar Doab (FIN)     09 June 2018

 

And

 

Gujarat High Court

4 Whether This Case Involves A ... vs State Of Gujarat & on 4 April, 2017

R/CR.MA/10625/2016

 

KISHORBHAI S/O. SOGNUMAL MATAI....Applicant(s)

                                        Versus

                          STATE OF GUJARAT & 1....Respondent(s)

 

https://indiankanoon.org/doc/175202959/

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 10625 of 2016

KISHORBHAI S/O. SOGNUMAL MATAI....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s)

file:///C:/Users/PC/Downloads/d_2016_GJHC240329142016-202.pdf

 

1. Rule returnable forthwith. Mr. Sandip Patel, the learned counsel, waives service of notice of rule for and on behalf of HC-NIC Page 1 of 13 Created On Wed Apr 05 00:40:57 IST 2017 R/CR.MA/10625/2016 JUDGMENT the respondent No.2 and Ms. Thakore, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1.

2. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original complainant, seeks to invoke the inherent powers of this Court praying for quashing of the order dated 01.10.2015 passed by the learned JMFC, Vadodara in the Criminal Case No.16591 of 2008, by which, the learned Magistrate dismissed the complaint for non- prosecution.

3. Section 256 of the Code of Criminal Procedure, reads as under;

"(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."

4. Thus, section 256 makes it clear that if the complainant fails to appear, the Magistrate shall acquit the accused, unless HC-NIC Page 2 of 13 Created On Wed Apr 05 00:40:57 IST 2017 R/CR.MA/10625/2016 JUDGMENT for some reason, he thinks it proper to adjourn the hearing of the case to some other day.

5. A preliminary objection is raised on behalf of the respondent No.2-original accused as regards the maintainability of this application under section 482 of the Code. According to Mr. Patel, there is no denying that the dismissal of the complaint, in default, under section 256, entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides the remedy by way of an appeal against the order of acquittal under section 378(4) of the Code.

9. Thus, in view of the judgment of the Supreme Court referred to above, the preliminary objection as regards the maintainability of this application raised on behalf of the original accused is rejected. I must now consider whether there was any good reason for the learned Magistrate to dismiss the complaint under section 256 for non-prosecution. 10. It appears that on the date, on which, the complaint came to be dismissed for non-prosecution, the complainant could not remain present for being cross-examined by the accused. 11. I am of the view that one opportunity should be given to the complainant to make good his case. 12. In the result, this application is allowed. The impugned order passed by the learned Magistrate, dismissing the complaint under section 256 of the Code, is quashed. The proceedings are remitted to the court of the learned JMFC, Vadodara. The proceedings shall commence from the stage they had stopped on the complaint being dismissed for default.

Kumar Doab (FIN)     09 June 2018

 

And

 

Delhi High Court

Jagmohan Arora vs Saroj Arora on 8 July, 2011

Author: Mukta Gupta

https://indiankanoon.org/doc/1185572/

1. The issue that arises for consideration in the present petition is whether the learned Metropolitan Magistrate has the jurisdiction to recall/review its order of dismissal of the complaint under Section 125 Cr.P.C. in default of appearance and non-prosecution.

2. The facts in a nutshell are that a complaint under Section 125 Cr.P.C. seeking maintenance was filed by the Respondent who is the wife of the Petitioner. The learned Metropolitan Magistrate vide its order dated 5 th February, 2008 directed the Petitioner to pay a monthly maintenance of Rs. 1000/- to the Respondent which the Petitioner duly paid till 30th March, 2009 when the complaint case No.218/2007 was dismissed for non-prosecution as the Complainant/Respondent failed to appear. The Respondent thereafter filed an application for restoration of the petition accompanied by the affidavit of the learned counsel. On the said application, the learned Metropolitan Magistrate recalled its order. Vide the impugned order dated 17th December, 2009 restored the complaint to its original position subject to a cost of Rs.300/-.

12. In Kehari Singh v. State of U.P. and another, 2005 Crl. L.J. 2330, it was held that people in such miserable conditions due to unavoidable conditions may not be able to attend the Court proceedings on every date fixed there to pursue their cases. In such situations, if it is held that the Court lacks the jurisdiction to restore the cases in absence of such provisions, the very object and purpose of the legislation would be frustrated. The paramount rule of interpretation, which overrides the others is that the Statute is to be expounded according to the intent of the think that made it. Therefore, even if there is any lacuna in the Statute, then also it is the obligation on the Magistrate to give effect to the will of the Legislature by a judicial order. Thus, the learned Magistrate is empowered to restore the proceedings initiated under Section 125 Cr.P.C., which were dismissed for non appearance of the complainant/applicant.

13. In view of the aforesaid discussion, the present petition and the application are dismissed.


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