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A Magistrate has power to recall order passed under Sec 125 Cr.P.C; SC.

Supreme Court of India

Justice Ashok Bhushan and Justice R. Subhash Reddy

The SC {SANJEEV KAPOOR v. CHANDANA KAPOOR & ORS.} holds that the order passed by Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order dated 06.05.2017 passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. Further held that the submission of learned senior counsel for the appellant that Section 362 Cr.P.C. prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted.

It was also held 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.

It was held that the High Court did not commit an error in rejecting the application filed by appellant under Section 482 Cr.P.C. The inherent powers of the High Court given under Section 482 Cr.P.C. are to be exercised to secure the ends of justice. The Family Court in passing order dated 05.01.2019 has done substantial justice in reviving the maintenance application of the wife which need no interference by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C.

In the present case, the issue falling for consideration before the SC was whether the magistrate has power to recall order - disposing the petition- under Sec 125 Cr.P.C; by restoration of the application for maintenance. The SC as aforesaid answered the same in affirmative.

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