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ALLAHABAD HIGH COURT
Pankaj Naqvi, J.
Meraj Alam - Appellant
Versus
State of U.P.And 2 Others - Respondent
Application U/S 482 No. 33501 of 2015
Decided On : 20-11-2015
Section 126(2) Cr.P.C - Deposit of Maintenance Amount - The court upheld the provision of Section 126(2) Cr.P.C, allowing the Magistrate to impose the condition of depositing a certain amount of maintenance as a condition precedent for the recall of an ex parte order.
Fact of the Case:
The applicant filed an application under Section 482 Cr.P.C against the order directing the deposit of 50% of the awarded amount as a condition precedent for the maintainability of the recall application.
Finding of the Court:
The court found that the provision of Section 126(2) Cr.P.C allows the Magistrate to impose such terms, including the deposit of maintenance amount, as a condition precedent for the recall of an ex parte order. The court also rejected the submission that the deposit condition was onerous and upheld the order impugned.
Issues: The issue was whether the condition of depositing 50% of the awarded amount as a condition precedent for the maintainability of a recall application was valid under Section 126(2) Cr.P.C.
Ratio Decidendi: The court's decision was based on the interpretation of Section 126(2) Cr.P.C, which allows the Magistrate to impose terms, including the deposit of maintenance amount, for the recall of an ex parte order.
Final Decision: The application under Section 482 Cr.P.C was dismissed, and the court upheld the order directing the deposit of 50% of the awarded amount as a condition precedent for the maintainability of the recall application.
Pankaj Naqvi, J.
Heard Sri Adil Jamal, learned counsel for the applicant and the learned A.G.A.
2. This application under Section 482 Cr.P.C is preferred against the order dated 10.9.2015 in Misc. Application No.67/2015, under Section 126(2) Cr.P.C, whereby the applicant has been directed to deposit 50 % of the awarded amount as a condition precedent for the maintainability of the recall application.
3. It is submitted that under the Code, no such condition with regard to deposit of amount could be imposed.
4. A perusal of the proviso appended to Section 126(2) Cr.P.C, provides that on a good cause being shown in an application for recall, an ex parte order may be set aside on such terms including the terms as to the payment of cost, to the opposite party as the Magistrate may think just and proper.
5. Thus, in a given case, it is always open for the learned Magistrate to impose such terms, which would include a condition of deposit of certain amount of maintenance as a condition precedent for recall. The payment of cost is over and above to the terms, if any. The submission raised is misconceived and is rejected. Moreover, deposit of 50 % of the awarded amount as a condition precedent for the maintainability of a recall application, is not so onerous as would persuade this Court to come to the rescue of the applicant in exercise of inherent jurisdiction, in view of the nature of the proceedings.
6. The order impugned does not suffer from any illegality.
The application is dismissed.
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