( 1 ) HEARD Sri M. C. Chaturvedi, learned counsel for the petitioner, learned a. G. A. and Sri H. M. Srivastava learned counsel for the respondent No. 2.

( 2 ) THIS writ petition has been filed against the order dated 12-3-2001 passed by the learned Judicial Magistrate, Kalpi district Jalaun in Criminal Case No. 00 of 2000, whereby the application filed by the respondent No. 2 was allowed and recalled the order dated 22-8-2000, passed by learned Judicial Magistrate, Kalpi, dismissing the applications filed by respondent No. 2 under Section 125 Cr. P. C. in her non-appearance and the case was restored to its original number at the cost of Rs. 100/- and order dated 22-6-2001, passed by learned iii Addl. Sessions Judge, Jalaun at Orai in criminal Revision No. 105 of 2001, whereby the revision filed by the petitioner against the abovementioned order dated 12-3-2001 was dismissed.

( 3 ) THE facts, in brief, of this case are that the respondent No. 2 Smt. Rekha Singh filed an application dated 28-11-1997 claiming the maintenance allowance from her husband, the petitioner Kehari Singh under Section 125 Cr. P. C. , in the Court of learned Judicial Magistrate, Orai, District jalaun. The respondent No. 2 did not appear in the court of learned Judicial Magistrate, orai on 22-8-2000 and no application on her behalf was moved to exempt her personal appearance, the petitioner also did not appear in the court but on his behalf an application for exempting his personal appearance was moved. So the case was dismissed on account of non-appearance of respondent No. 2. Thereafter, respondent no. 2 filed an application dated 15-9-2000 in the court concerned praying therein to recall the order dated 22-8-2000 and to restore her case to its original number. The petitioner filed an objection against the abovementioned application dated 15-9-2000 after hearing both the parties, the order dated 22-8-2000 was recalled by the learned Magistrate on 12-3-2001 and the case was restored to its original number at the cost of Rs. 100/ -. This order dated 12-3-2001 was challenged by the petitioner by way of filing Criminal Revision No. 105 of 2001, the same was dismissed by learned iii Addl, Sessions Judge, Jalaun at Orai on 22-6-2001.

( 4 ) IT is contended by the learned counsel for the petitioner that the impugned order dated 12-3-2001 passed by learned Judicial Magistrate, kalpi recalling the order dated 22-8-2000 and restoring the case and the order dated 22-6-2001 passed by learned iii Addl. Sessions Judge, Jalaun at Orai are illegal which have been passed without applying the judicial mind because (i) there is no provision in Criminal Procedure Code to recall the order by which the complaint was dismissed in non-appearance (ii) the said order being revisable, so it was open for the respondent No. 2, to approach the revisional authority to get the said order annulled or set aside (iii) it was open for the respondent no. 2 to file her second complaint.

( 5 ) IN support of his contention, the learned counsel for the petitioner has relied upon case of Shyamta v. Dangra, reported in 1980 (17) All Cri C 14 : (1980 All LJ 135), and the case of Krishna Rao Paine v. Pramila bai, reported in 1976 Cri LJ 1819 (All), where it was held that in the Criminal Procedure code, there is no provision of review its judgment or order and only clerical or arithmetical errors can be corrected. But Section 126 (2) Cr. P. C. provides that a person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereafter subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

( 6 ) LEARNED counsel for the petitioner has also relied upon the case o

Click Here to Read the rest of this document