125 RW 362 CRPC

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Magistrate Can Review Order Passed

Under Sec 125 CrPC; Bar Under Sec 362
CrPC Not Applicable : SC [Read
Judgment]
Radhika Roy 20 Feb 2020 2:24 AM GMT
Application of Section 362 can be relaxed in proceedings under
Section 125.
The Supreme Court of India has held that a Magistrate who passes an order
on settlement between parties under Section 125 of the Code of Criminal
Procedure (CrPC) has the power to recall or set aside the Order if terms of
the same are violated, and Section 362 of CrPC does not function as a bar on
the same.
THE LAW
Section 125 of the CrPC bestows in the Magistrate of the first class the
power to pass an order directing for the payment of a monthly allowance for
maintenance of wives, children and parents of any person having sufficient
means to provide the same.
Section 362 of the CrPc, on the other hand, provides a bar on the authority of
the Court to alter or review a judgement or final order which disposes of a
case, except for the correction of a clerical or arithmetical mistake.
THE ISSUE
Whether the setting aside of an order disposing of an application under
Section 125 CrPC and consequently restoring the said application is contrary
to Section 362 of the CrPC.
The Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy
took into consideration the legislative scheme behind the promulgation of
Section 362 of the CrPC by breaking down the Section.
A. Saving Clause
The Bench stated that as the Section contains a saving clause, "the rigour as
contained in Section 362 CrPC 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."
Therefore, the Bench held that "the legislature was aware that there are and
may be 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."
In examination of exceptions provided by CrPC itself, the Bench explored the
legislative scheme of Section 125 CrPC:
"Section 125 CrPC is a social justice legislation which orders for maintenance
for wives, children and parents. Maintenance of wives, children and parents is
a continuous obligation enforced."
The case of Badshah v. Urmila Badshah Godse [(2014) 1 SCC 188] was
invoked in order to supplement the aforementioned statement. This case
allows for a purposive interpretation to be given to Section 125 as the
purpose is to achieve the constitutional vision of social justice as is
enshrined in the Preamble of the Constitution of India. Therefore, a duty is
placed on the shoulders of the court to advance the cause of social justice
and therefore, during the course of interpretation, bridge the gap between the
law and society.
In order to achieve the same, an approach towards "social justice
adjudication/social context judging" must be adopted, as opposed to a mere
"adversarial approach". As elaborated by Prof. Madhava Menon, this
approach is "essentially the application of equality jurisprudence as evolved
by the Parliament and the Supreme Court in myriad situations presented
before courts where unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice." As per Prof. Menon,
in situations with socio-economic inequalities, an adversarial approach
operates in a disadvantageous manner toward the weaker party. Therefore, it
is incumbent upon the Judge to be sensitive toward such inequalities so as
to not allow for miscarriage of justice.
B. Express provisions for alteration or cancellation under Section 125(1),
Section 125(5) and Section 127 of the CrPC
The Bench stated that "a closer look of Section 125 CrPC itself indicates that
the Court after passing judgment or final order in the proceeding under
Section 125 CrPC does not become functus officio. The Section itself
contains express provisions where order passed under Section 125(1),
Section 125(5) and Section 127 of CrPC…"
The usage of the expression "as the Magistrate from time to time direct" in
Section 125(1) contemplates the continuous jurisdiction that can be
exercised by the Magistrate when the occasion arises and that the
Magistrate does not become functus officio after passing an order under
Section 125.
While Section 125(5) expressly empowers the Magistrate to cancel an order
passed under Section 125(1) on fulfilment of certain conditions, Section 127
"discloses the legislative intendment where the Magistrate is empowered to
alter an order passed under Section 125 CrPC".
HELD
1. Application of Section 362 can be relaxed in proceedings under Section
125
On the basis of the aforementioned contentions, the Bench then held that the
embargo contained under Section 362 of the CrPC was relaxed in
proceedings under Section 125 CrPC. As the submissions of the counsel for
the Appellant were founded on this issue only, the Bench did not accept the
same.
2. Section 125 must be interpreted in a manner to advance the cause of
justice for women
The Bench also proceeded to state that "Section 125 CrPC has to be
interpreted in a manner as to advance justice and to protect a woman for
whose benefit the provisions have been engrafted."
Case Name: Sanjeev Kapoor v. Chandana Kapoor & Ors

Case Number: Criminal Appeal Nos. 286 of 2020
Coram: Justices Ashok Bhushan and R. Subhash Reddy
Counsel: Sr. Adv. Subhodh Markandeya, Risabh Jain and Bhaskar Vali (Appellant)
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Magistrate Can Review Order Passed

on settlement between parties under Section 125 of the Code of Criminal

means to provide the same.

the Court to alter or review a judgement or ﬁnal order which disposes of a

case, except for the correction of a clerical or arithmetical mistake.

Whether the setting aside of an order disposing of an application under

to Section 362 of the CrPC.

The Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy

took into consideration the legislative scheme behind the promulgation of

Section 362 of the CrPC by breaking down the Section.

contained in Section 362 CrPC 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."

may be situations where altering or reviewing of criminal court judgment is

In examination of exceptions provided by CrPC itself, the Bench explored the

legislative scheme of Section 125 CrPC:

a continuous obligation enforced."

invoked in order to supplement the aforementioned statement. This case

allows for a purposive interpretation to be given to Section 125 as the

purpose is to achieve the constitutional vision of social justice as is

enshrined in the Preamble of the Constitution of India. Therefore, a duty is

law and society.

In order to achieve the same, an approach towards "social justice

adjudication/social context judging" must be adopted, as opposed to a mere

"adversarial approach". As elaborated by Prof. Madhava Menon, this

approach is "essentially the application of equality jurisprudence as evolved

by the Parliament and the Supreme Court in myriad situations presented

operates in a disadvantageous manner toward the weaker party. Therefore, it

is incumbent upon the Judge to be sensitive toward such inequalities so as

to not allow for miscarriage of justice.

B. Express provisions for alteration or cancellation under Section 125(1),

Section 125(5) and Section 127 of the CrPC

contains express provisions where order passed under Section 125(1),

Section 125(5) and Section 127 of CrPC…"

Section 125(1) contemplates the continuous jurisdiction that can be

While Section 125(5) expressly empowers the Magistrate to cancel an order

passed under Section 125(1) on fulﬁlment of certain conditions, Section 127

"discloses the legislative intendment where the Magistrate is empowered to

alter an order passed under Section 125 CrPC".

embargo contained under Section 362 of the CrPC was relaxed in

2. Section 125 must be interpreted in a manner to advance the cause of

justice for women

interpreted in a manner as to advance justice and to protect a woman for

whose beneﬁt the provisions have been engrafted."

Case Name: Sanjeev Kapoor v. Chandana Kapoor & Ors

Click here to download judgment

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