Rrevision against ex parte order
Querist :
Anonymous
(Querist) 02 August 2011
This query is : Resolved
I am advocate.In an application under section 125 cr.p.c magistrate passed a final ex parte order against husband on account of his absence after he put up appearance on being served.The order is under Proviso to S.126(2) cr.p.c & dated 15.4.2011.Respondent's advocate did not file application for setting aside ex parte order in the same court but file revision before SJ (u/s.397 cr.p.c)on 01.8.2011.
WHETHER THIS REVISION IS MAINTAINABLE ?
If YES, How?
If NOT, Why?
Please guide....Thanks in advance
Raj Kumar Makkad
(Expert) 02 August 2011
Revision is maintainable as such person have available both the opportunities either he may file ex-parte setting aside application before same court or may file revision against order passed.
J.D.Sharma
(Expert) 02 August 2011
I think you meant that magistrate mentions in his order that the order passed is in conformity with sec 126(2). The respondent could have filed application u/s 126(2) Cr.P.c for setting aside the order but as the magistrate already has recorded his satisfaction u/s 126(2)there was no logic in filing this application. For undoing the order he would have to recall his order and there is absolutely no provision in the Code of Criminal Procedure of 1908 empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 482 which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, there- fore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint or to recall the order to proceed ex-parte. The remedy of the respondent was to move the Sessions Judge or the High Court in revision.
It is true that s. 397(2) bars the jurisdiction of the court in respect of interlocutory orders but the ex-parte order on complaint by a criminal court due to the absence of a respondent is a proper order. Therefore, the order is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. the only remedy is to file revision before session court u/s 397 Cr.P.c.
Ajay Bansal
(Expert) 02 August 2011
Agreed with Raj Kumar.As per law both remidies are available to husband.
Querist :
Anonymous
(Querist) 02 August 2011
Respected Mr.Makkar,I agree that in such a case both remedies are available to the Husband aggrieved.But my query is specific w r t LIMITATION .Under the Proviso to S.126(2) Hus can either file application for setting aside ex parte order WITHIN THREE MONTHS ( apart from the controversy whether Lim Act applies or not) & at the same time Hus mat Alternatively file Revision without filing application under the said Proviso.But if files Rev beyond THREE MONTHS without first having approached the Magistrate Court,WHETHER IN THAT CASE REVISION WILL BE MAINTAINABLE OR BARRED ?
Respect Mr.Sharma J.D.with due deference I dont agree with your view of approaching the proposition.B'coz,it is not a case of REVIEWING Final Order or Judgment,Section 126 Cr.P.C. is a self contained provision in itself-a special provision in the Code.Going through the proviso to Sub-section (2) of Section 126,we find that it prescribed procedure for SETTING ASIDE ex parte order.The proviso also prescribes time limit.
Moreover,besides remedy for filing application under the said proviso an aggrieved husband can file revision u/s.397 or 401 Cr.P.C as a measure of an ALTERNATIVE REMEDY,not equally efficacious remedy.S.482 Cr.P.C will not be attracted unless an application is decided by the Magistrate of Family Court under the Proviso,as there is catena of judgment that "when equally efficacious remedy is available under a provision in the enactment,inherent powers cannot be invoked".
My anxiety is only to the extent...WHETHER A DIRECT REVISION UNDER S.397 Cr.P.C WITHOUT AVAILING RELIEF UNDER THE PROVISION TO S.126(2) Cr.P.C & THAT TOO AFTER 3 MONTHS FROM INFERIOR COURT'S ORDER IS MAINTAINABLE OR TIME BARRED & NOT MAINABLE?
Looking forward for Expert opinion soon.Thanks & Regards.
Querist :
Anonymous
(Querist) 04 August 2011
Respected Experts, I am still waiting for the expert opinion.It is unjust to leave a proposition of law halfway.My simple qn is "If an ex parte order under section 126(2)read with Proviso (equivalent to provision of S.488(6) old Cr.P.C.) CANNOT be set aside AFTER THREE MONTHS, DOES A REVISION LIE AFTER THREE MONTHS? If not what are the important reported judgments.
Please make your expert comment or opinion so that 'commoners' can understand.
Regards to all.....!
