The Allahabad High Court has ruled that orders issued under Section 125 of the CrPC, whether final or interim, can be recalled or modified under Section 127 of the CrPC. Therefore, the restriction imposed by Section 362 CrPC does not apply in these cases.
Justice Arun Kumar Singh Deshwal’s bench observed that the bar under Section 362 CrPC, which prohibits the recall or alteration of a final judgment or order after it is signed, does not apply if the CrPC itself allows for such actions, as it does with Section 125 CrPC.
Section 362 CrPC specifies that a final judgment or order cannot be recalled or reviewed after being signed unless otherwise provided by the code or another law.
These observations were made while rejecting an application from a husband who challenged a family court’s order granting a recall application filed by his wife (opposite party no. 2) and daughter (opposite party no. 3). The recall application concerned the dismissal of a maintenance application filed by the opposite parties under Section 125 CrPC due to lack of prosecution.
The lower court, in the contested order, noted that in proceedings under Section 125 CrPC, if a case is dismissed for lack of prosecution, it can be recalled under Section 126(3) CrPC, where the court has the authority to issue appropriate orders based on the circumstances.
Before the High Court, the applicant’s counsel argued that the recall order was erroneous, claiming that once an application under Section 125 CrPC is dismissed for lack of prosecution, it cannot be recalled or modified due to the bar under Section 362 CrPC. On the other hand, the counsel for the opposite parties argued that Section 362 CrPC itself includes an exception found in Section 127 CrPC, which allows the court to alter or modify any order passed under Section 125 CrPC.
The single judge emphasized that the bar under Section 362 has specific exceptions and that, for orders passed under Section 125 CrPC, the magistrate has the authority under Section 126(3) CrPC to issue just and proper orders.
Furthermore, the Court noted that Section 127 CrPC grants the court that issued a maintenance order under Section 125 CrPC, including interim maintenance orders, the jurisdiction to make necessary alterations.
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“In Section 125 CrPC using of expression ‘as the Magistrate from time to time direct’, the use of expression from time to time has purpose and meaning. It clearly contemplates that the order passed u/s 125(1) CrPC, the Magistrate may have to exercise jurisdiction from time to time. The above legislative scheme indicates that Magistrate does not become functus officio after passing of the order u/s 125 CrPC,” the Court added.
Therefore, the Court held that orders under Section 125 CrPC, whether final or interim, can be recalled or modified under Section 127 CrPC, rendering the bar of Section 362 CrPC inapplicable.
