Can Section 362 of the Code of Criminal Procedure be altered under exceptional circumstances?

Falgu Mukati | Pravin Gandhi College of Law | 24th February 2020

Sanjeev Kapoor vs Chandana Kapoor and Ors, Criminal Appeal NOS.286 OF 2020

Matter

In this case the couple had two children born out of the wedlock. Soon after the birth of the second child respondent no 1(i.e. Chandana Kapoor) filed an application under Section 125 of Code of Criminal Procedure (Cr.P.C) against her husband claiming maintenance for herself and their children. Thus, the appellant filed a petition for divorce against respondent No.1. On the reconciliation efforts made by the Family Court parties settled the matter amicably on the terms and conditions recorded separately in the Court. As per the settlement the appellant was to pay Rs.25,000/- per month towards the maintenance of the respondents with effect from July, 2015 up to April, 2017. It was further contemplated that the couple shall file petition for divorce by mutual consent by incorporating the terms and conditions. However, the appellant paid maintenance for only 4 months. As a result, the respondent filed an application under Section 125(3) Cr.P.C. for enforcement of the order dated 06.05.2017.

Appellant’s Contention

• The application filed by the respondent no 1 (i.e. Chandana Kapoor) under Section 125 of the Code of Criminal Procedure, which was decided by order dated 06.05.2017, by the Family Court, the Family Court had no jurisdiction to set aside the order.
• The impugned order dated 05.01.2019 is without jurisdiction and is in the teeth of provision of Section 362 Code of Criminal Procedure
• It stated that as per Section 362 of Cr.P.C the Court cannot alter or review the judgment except to correct a clerical or arithmetical error.
• The order dated 05.01.2019 passed by the Family Court being contrary to Section 362 Cr.P.C. is void.

Respondent’s Contention

• It supported the impugned judgment of the High Court.

Issues Raised

• The main issue in this case is that are there any exceptions whether the court can review or alter a judgement that was disposed of or signed by it.

Held

• Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125.
• The appellant’s contention that Section 362 Cr.P.C. prohibit the Magistrate to pass the order dated 05.01.2019 cannot be accepted. 
• The order passed by the Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order dated 06.05.2017, is valid.
• The High Court has not committed any error in rejecting the application filed by appellant under Section 482 Cr.P.C.