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1998 Supreme(Mad) 263
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.M. SIDICKK
Nallan
Versus
Palaniammal
Crl.R.C.No.175 of 1998 and Crl.M.P.No.1317 of 1998
Decided On : 24-02-1998
N.Nithianandam, for Petitioner.
In the interest of justice and by exercising the discretionary power, the Magistrate can allow an amendment petition in the maintenance petition filed under Section 125 of Cr.P.C.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 125 - AMENDMENT OF MAINTENANCE PETITION - POWER OF MAGISTRATE - INTEREST OF JUSTICE - DISCRETIONARY POWER - SECTION 126(2) - SUMMONS CASE - EVIDENCE - RECORDING - SECTION 125 - INTERIM MAINTENANCE - SECTION 126 - EX PARTE ORDER - SETTING ASIDE - SECTION 125 - SUBSTITUTION OF AUTHORISED REPRESENTATIVE - INTEREST OF JUSTICE - DISCRETIONARY POWER - SECTION 401 AND 397 - REVISION - SCOPE - ILLEGALITY OR IMPROPRIETY - ORDER OF MAGISTRATE - CONFIRMATION - ADDITIONAL COUNTER-STATEMENT - OPPORTUNITY TO FILE - MAINTENANCE CASE - DISPOSAL.
Fact of the Case:
The petitioner filed a revision petition challenging the order of the Judicial Magistrate allowing the respondent/wife to amend her maintenance petition under Section 125 of the Criminal Procedure Code (Cr.P.C.) by incorporating further pleadings with reference to a deed of partition. The petitioner argued that there is no provision for amendment under Section 125 of Cr.P.C. and that the partition deed is fabricated.
Finding of the Court:
The court held that there is no specific provision for amendment under Section 125 of Cr.P.C., but in the interest of justice and by exercising the discretionary power, the Magistrate can allow an amendment petition in the maintenance petition filed under Section 125 of Cr.P.C. The court further held that the question as to whether further pleadings by way of amendment are true or not true, is a matter for consideration and appraisal of evidence by the trial Magistrate and not by the revisional court.
Issues: 1. Whether there is a provision for amendment under Section 125 of Cr.P.C.? 2. Whether the partition deed is fabricated?
Ratio Decidendi: 1. The court relied on various Supreme Court decisions to hold that even though there is no specific provision of law, in the interest of justice and by exercising the discretionary power, the Magistrate can allow an amendment petition in the maintenance petition filed under Section 125 of Cr.P.C. 2. The court held that the question as to whether further pleadings by way of amendment are true or not true, is a matter for consideration and appraisal of evidence by the trial Magistrate and not by the revisional court.
Final Decision: The court dismissed the revision petition and confirmed the order of the Judicial Magistrate allowing the amendment of the maintenance petition. The court also directed the Judicial Magistrate to give an opportunity to the petitioner/husband to file an additional counter-statement in view of the further pleadings to be made by way of amendment in the main maintenance petition.
This is a criminal revision petition filed under Sec.401 read with Sec.397 of Crl.P.C. to set aside the order passed by the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128 of 1997 in M.C.No.19 of 1996, dated 212. 1997.
2. The respondent herein is the wife of the petitioner herein. The respondent/wife filed an application under Sec.125 of Crl.P.C. against the petitioner to grant monthly maintenance at the rate of Rs.500 and the petitioner/husband has also filed a counter statement before the Judicial Magistrate at Musiri in M.C.No. 19 of 1996. After examination of some witnesses on behalf of the respondent/wife, an application was filed under Sec. 125 of Crl.P.C, to amend the maintenance petition by making further pleadings in the main petition by the wife by referring to a deed dated 26. 1996 whereunder both the parties have come to some agreement or arrangement for the division of the properties and that amendment application was taken of file by the learned Judicial Magistrate at Musiri in Crl.M.P.No.2128 of 1997 and the petitioner/husband did not file any counter statement controverting the allegations made in the affidavit of the respondent/wife set out in her amendment petition in Crl.M.P.No.2128 of 1997.
3. After hearing both the parties the learned Judicial Magistrate at Musiri allowed the amendment application in Crl.M.P.No.2128 of 1997 on 212. 1997 thereby permitting the wife to incorporate further pleadings with reference to the deed dated 26. 1996 by way of amendment in the main maintenance claim petition in M.C.No. l9 of 1996.
4. Questioning the order of the learned Judicial Magistrate dated 212. 1997 in Crl.M.P.No.2128 of 1997, the present revision petition is filed by the petitioner/husband on the following grounds: Even in the legal notice issued prior to the filing of the maintenance petition in M.C.No. 19 of 1996, the respondent/wife has not stated anything about the alleged partition deed dated 26. 1996 for which now she has sought for by way of amendment to make additional set of pleadings in the petition. Only after examining four witnesses and marking three documents, on her side the respondent/wife came to her senses that she has not stated about the fact that a panchayat was held on 26. 1996 at which the partition deed was executed between the petitioner/husband and the respondent/wife. The respondent/wife has adopted this course because she was not able to prove her cause for maintenance. These facts would clearly show that the alleged panchayat and the partition deed dated 26. 1996 is a concocted one for the purpose of maintenance case and these facts would establish that the deed dated 26. 1996 is a fabricated one. There is no provision for amendment under Sec.125 of Crl.P.C, since Sec.l26(2) of Crl.P.C. enables the court to conduct the trial summarily.
5. Thus two objections are raised on behalf of the revision petitioner/husband to set aside the order passed by the learned Magistrate in the amendment petition in Crl.M.P.No.2128 of 1997. One is that there is no provision for amendment in Sec.125 of Crl.P.C. The second objection is that the partition deed dated 26. 1996 is a concocted and fabricated document because it was not referred to earlier in the notice issued by the respondent/wife prior to the filing of the maintenance petition. So far as the second objection is concerned, it is a question of fact and it can only be decided by the learned Magistrate on an appraisal and appreciation of evidence that has to be let in the maintenance case in M.C.No. 19 of 1996. Such question of fact cannot be gone into by this revision court under Secs.401 and 397 of Crl.P.C. So the second ground urged by the petitioner/husband is not a valid one to set aside the order passed by the learned Magistrate in the amendment petition in Crl.M.P.No.2128 of 1997.
6. So far as the first objection of the revision petitioner is concerned, according to him the trial in the maintenance case is a summary
