The court affirmed that orders under Section 125 Cr.P.C. can be recalled or modified despite Section 362's bar, emphasizing the need for social justice.

1. Rejoinder affidavit filed today is taken on record. 2. Heard learned counsel for the applicant, learned counsel for opposite party no.2 and Sri Sunil Kumar Kushwaha, learned AGA for the State.

3. The present application has been filed for the following relief: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quashed the order and judgment dated 25.01.2019 in recall/restoration application no.164 of 2017 whereby has recall/restore ex-parte order dated 23.11.2017 passed by the learned trial court in Case No.336 of 2016 (Smt. Bindu Devi & Others Vs. Rajkumar), u/s 125 Cr.P.C ., pending in the court of the Chief Judge, Family Court, Azamgarh."

4. Facts giving rise to the present case are that opposite parties, nos.2 and 3, are the wife and daughter of the applicant, respectively. The application for maintenance u/s 125 Cr.P.C . filed by opposite parties, nos.2 and 3, was dismissed for want of prosecution on 23.11.2017. Against that order, opposite parties, nos.2 and 3 filed a recall application, which was allowed by the court below by the impugned order dated 25.01.2019. This impugned order is under challenge in the present case.

5. Contention of learned counsel for the applicant is that the impugned order is erroneous as once an order has been passed in criminal proceeding dismissing the application u/s 125 Cr.P.C . for want of prosecution, then same cannot be recalled or modified in view of the bar of Section 362 Cr.P.C . In support of his contention, the counsel of the applicant relied upon the judgment of the Apex Court in the case of State Rep. by D.S.P., S.B.C.I.D., Chennai Vs. K.V. Rajendran and Ors in Criminal Appeal No.1389 of 2008 . In this judgment, the Apex Court observed that the bar of Section 362 Cr. P.C. also applies to the inherent power under section 482 Cr.P.C . 6. Per contra, learned counsel for opposite parties, nos.2 and 3 as well as learned AGA have submitted that Section-362 Cr.P.C . provides that save as otherwise provided by the Cr.P.C . or any other law, no court shall alter or review its judgement or final order disposing of the case.

Therefore, it is clear that an exception has been provided in Section-362 Cr.P.C ., itself and that exception has been mentioned in Section-127 Cr.P.C . which permits the court to alter or change any order passed u/s 125 Cr.P.C . Therefore, the court below is correct in recalling the order dated 23.11.2017 and restoring the case at its original number. In support of his contention, learned counsel for opposite party no.2 has relied upon the judgement of the Apex Court in the case of Sanjeev Kapoor Vs. Chandana Kapoor & Others reported in AIR 2020 SC 1064 . In that judgement, the Apex Court observed that even after passing the order u/s 125 Cr.P.C ., Magistrate or the court concerned will not become functus officio and it has jurisdiction to cancel or modify the order passed u/s 125 Cr.P.C .

7. After hearing the rival contention of learned counsel for the parties, and on the perusal of record, it appears that the application filed by the opposite parties, nos.2 and 3 against the applicant seeking maintenance u/s 125 Cr.P.C . was dismissed for want of prosecution on 23.11.2017 and on the recall application filed by the opposite parties, nos.2 and 3, the order dated 23.11.2017 was recalled and matter was restored to its original place by the impugned order dated 25.01.2019. In the impugned order, the court below has observed that in the proceeding of 125 Cr.P.C ., if the case was dismissed for want of prosecution, the same can be recalled under Section-126(3) Cr.P.C . where the court has all power to make such order as the circumstances require.

8. So far as the bar u/s 362 Cr.P.C . is concerned, the bar has been imposed to recall or modify the final order by Section-362 Cr.P.C . after signing the same. It is clear from Section-362 Cr.P.C . that unless otherwise provided by the code or any othe