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Magistrate can cancel or alter his order u/s 125 Cr.PC

In SANJEEV KAPOOR vs CHANDANA KAPOOR & ORS., the question before the Supreme Court was whether the embargo contained in under Section 362 Cr.P.C. prohibiting the court to alter or review its judgment or final order disposing the case applies to order passed under Section 125 Cr.P.C.

The Supreme Court observed that Section 362 of Cr.P.C., puts embargo on the criminal Court to alter or review its judgment or final order disposing the case but the section has to be examined to see whether the orders passed in present case are covered by the exception i.e. “save as otherwise provided by the Code” in Section 362.

Section 125 as well as Section 127 of  Cr.P.C. are soscial justice legislation which cover order for maintenance for wives, children and parents.

The closer look of Section 125 Cr.P.C. itself indicates that he Section itself contains express provisions where order passed under Section 125 Cr.P.C. can be cancelled or altered which is noticeable from Section 125(1), Section 125(5) and Section 127 of Cr.P.C.

In Section 125 Cr.P.C. uses the expression “as the Magistrate from time to time direct”. The expression ‘from time to time’ 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. Use of expression ‘from time to time’ in is exercise of jurisdiction of Magistrate in a particular case.


The above Legislative Scheme indicates that 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.

Sub-Section (2) of Section 127 Cr.P.C. also empower the Magistrate to cancel or vary an order under Section 125.

The Supreme Court decided that the Legislative Scheme as delineated by Sections 125 and 127 Cr.P.C. as noted above clearly enumerated the circumstances and incidents provided in the Code of Criminal Procedure where Court passing a judgment or final order disposing the case can alter or review the same. The embargo as contained in Section 362 is, thus, clearly relaxed in proceeding under Section 125 Cr.P.C. as indicated above.

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