Magistrate can vary an order under Section 125 Cr.PC: SC

The Supreme Court of India recently clarified that reviving of maintenance application of wife under Section 125 of Criminal Procedure Code (“Code”) is not hit by the embargo contained in Section 362 of the Code.

“The use of expression ‘from time to time’ [in Section 125] has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time”, the Court said.

“…..Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions”, the Court added.

The Court further said that Section 127 Cr.P.C. also discloses the legislative intendment where the Magistrate is empowered to alter an order passed under Section 125 Cr.P.C. Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125.

It was pleaded before the Court that under Section 362 Cr.P.C. the court cannot alter or review the judgment except to correct a clerical or arithmetical error.

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