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Madhya Pradesh High Court · body

2003 DIGILAW 1084 (MP)

Satish Patel v. Pusia Bai

2003-09-15

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
Judgment ( 1. ) FEELING aggrieved by the order dated 23-7-98 in Criminal Revision No. 64/96 passed by the learned Second Additional Sessions Judge, Mandla whereby the Revisional Court has reversed the order dated 26-9-1996 passed in M. Cr. C. No. 159/95 by the Judicial Magistrate First Class, Mandla the petitioner has invoked the jurisdiction of this Court under Section 401 of the Code of Criminal Procedure (in short the Code) for setting aside the said order. ( 2. ) THE facts as have been exposited are that the non-applicant wife instituted a proceeding under Section 125 of the Code of Criminal Procedure claiming a particular sum towards maintenance but she was unsuccessful before the Court of first instance. Being dissatisfied the wife carried a revision and the Revisional Court granted maintenance at the rate of Rs. 600/- from the date of the order passed by the learned Magistrate, i. e. , 26-8-96. The said order is the subject-matter of present revision. ( 3. ) WHEN the matter was listed before the learned Single Judge a contention was canvassed by Mr. Umesh Trivedi, learned counsel for the petitioner that the Revisional Court could not have granted maintenance at the rate of Rs. 600/- from the date of the order inasmuch as the maximum amount that could have been granted in favour of the non-applicant could not have exceeded Rs. 500/ -. Learned counsel for the respondent in support of the order passed by the Revisional Court placed reliance on the decision rendered in the case of Ramfool v. Smt. Jagrati, 2001 (2) M. P. H. T. 234, to highlight that the grant of maintenance allowance at the rate of Rs. 600/- was neither illegal nor unjustified as the learned Single Judge therein had held that the State amendment which had come into existence with effect from 30-5-98 is applicable to the pending cases and as the revision was decided after 30-5-98 the State Government which has enhanced the amount from Rs. 500/- to Rs. 3000/-can be made applicable. In the case of Ramfool (supra) the learned Single Judge after referring to the language of the amendment and the objects and reasons in Paragraph 12 came to hold that the said amendment is intended to be made applicable to the pending proceedings. 500/- to Rs. 3000/-can be made applicable. In the case of Ramfool (supra) the learned Single Judge after referring to the language of the amendment and the objects and reasons in Paragraph 12 came to hold that the said amendment is intended to be made applicable to the pending proceedings. Thereafter, the learned Single Judge after referring to the decisions rendered by the Apex Court in the cases of Dayawati and Anr. v. Inderjeet and Ors. , AIR 1966 SC 1423 and Laxmi Narayan Guin v. Niranjan Modak, AIR 1985 SC 111 expressed the view that there is distinction between the laws affecting procedure and those affecting vested rights. Eventually, the learned Single Judge in Paragraph 17 came to hold that where the orders are passed after 30-5-98 the Magistrate has powers to enhance the amount of maintenance from Rs. 500/- to Rs. 3000/ -. In the order of reference the learned Single Judge extensively quoted from the case of Ramfool (supra) wherein the learned Single Judge observed that the amendment would be prospective and thereafter expressed the opinion that it would be applicable to the pending proceedings. The learned Single Judge who has referred the matter observed that as far as the applicability to the pending cases is concerned one does not perceive any difficulty. But the difficulty arises in regard to the observation "magistrates have the power to enhance the amount of maintenance in the cases in which orders are passed after 30th May, 1998". As the aforesaid observation was too broadly stated it was felt by the learned Single Judge that the said observation occurring in Paragraph 17 of the decision rendered in the case of Ramfool (supra) required reconsideration by a Larger Bench inasmuch as when the amended provision is regarded as prospective it can not be given effect to prior to that day. That is how the matter is before us. ( 4. ) WE have heard Mr. Umesh Trivedi, learned Counsel for the petitioner and Mr. Sanjay Saini, learned Counsel for the respondent. ( 5. ) MR. Umesh Trivedi, learned counsel for the petitioner has submitted that the amendment can not be made applicable to the pending cases. It is his further submission though the State Legislature amended Section 125, yet it did not amend Section 127, Cr. PC whereby an incurable inconsistency has cropped up. Sanjay Saini, learned Counsel for the respondent. ( 5. ) MR. Umesh Trivedi, learned counsel for the petitioner has submitted that the amendment can not be made applicable to the pending cases. It is his further submission though the State Legislature amended Section 125, yet it did not amend Section 127, Cr. PC whereby an incurable inconsistency has cropped up. It is propounded by him that if the Magistrate can not enhance compensation beyond Rs. 500/- as stipulated under Section 127 he can not grant beyond Rs. 500/- and, therefore, the same amendment is unworkable, ineffective and in way null and void. Mr. Trivedi fairly submitted that this submission was not canvassed before the learned Single Judge who has referred the matter. Though the submission has some force and would have really created immense problem relating to realm of interpretation, the said submission has to melt into insignificance inasmuch as the Parliament has amended Section 125 as well as Section 127 in the year 2000 whereby no limit has been prescribed. However, being embedded in his submission Mr. Trivedi stated that the amendment brought by the Parliament can be given effect to from the date of amendment and the said amendment can not be worked out from 1998. We may hasten to clarify we are not dealing with the constitutional validity of the said amendment in praesenti. The same also does not arise in this case. Against the grant of maintenance allowance by Rcvisional Court this revision has been filed. The stage of Section 127 has not come into being. The non-applicant may be granted or may not be granted maintenance. A simple question has been referred to the Larger Bench. Mr. Sanjay Saini, learned Counsel for the respondent, has submitted a written note of submission by supporting the observations made in Ramfools case. It is urged by him that the term "proceeding" should not be given a narrow or limited meaning and the central amendment that has come into force on 24-9-2000 would have effect from beginning. ( 6. ) HAVING heard learned Counsel for the parties we are of the considered view that the State amendment which came into force on 30-5-98 has rightly been held to be prospective by the learned Single Judge. ( 6. ) HAVING heard learned Counsel for the parties we are of the considered view that the State amendment which came into force on 30-5-98 has rightly been held to be prospective by the learned Single Judge. He has also rightly held that this would apply to pending proceedings but observed that the Magistrates have the power to enhance the amount of maintenance in the cases in which orders are passed after 30-5-98 requires to be clarified. The provision under Section 125 at the time of initiation of proceeding under Section 125, Cr. PC has to be respected. If the proceeding is in continuance it would be governed by the amendment 30-5-98 and the Magistrates would be entitled to grant maintenance allowance to the maximum limit as fixed by the State Legislature from the date of amendment by the State Legislature. The Magistrate can not enhance the amount of maintenance solely because he is passing the order after the date of amendment. To elaborate, the amendment though would be applicable to pending proceeding, can not be made retrospective. To give an example : if a proceeding has been initiated in the year 1992, the rate fixed under Section 125, Cr. PC would be applicable and thereafter, if proceeding has been continuing after 30-5-98 the amended provision would be applicable from the date the amended provision came into existence. Similarly, the provision enshrined by the Parliament has to be treated to be prospective. It is because there is no intendment of the Legislature to make it retrospective. It is one thing to say that it would be applicable to pending proceeding and another thing to confer the benefit retrospectively. ( 7. ) ACCORDINGLY, we clarify that the decision rendered in Ramfools case and hold that the observation "magistrate have the power to enhance the amount of maintenance in the cases in which orders are passed after 30th May, 1998" is out of context and was not necessary to stated in the context of the said case and has been too broadly stated. The same is not to be treated as the binding precedent. ( 8. ) REFERENCE is answered accordingly. The matter be placed before the learned Single Judge for adjudication on merits.