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Petetioner did not have opportunity of being heard, 125 Quashed

Gauhati High Court

Criminal Revision No. 168 of 1986

Sri Santi Ram Sarma


Smt. Kanaklata Devi on 3 June, 1993

Equivalent citations: 1993 CriLJ 3317

Mr. P.C Kataki, Mr. A. Wahed, Mr. H. Munir for the petitioner.

Mr. D.K Talukdar, & Mr. D.K Sarma for the opp. party.

Bench: Manisana
ORDER Manisana, J.

1. In this application under Section 482, Cr.P.C, the petitioner has challenged an order of the Sessions Judge, Darrang made on 27-2-1986 in CM No. 249(D-2)85 arising from the order of the Magistrate of the First Class, Mangaldoi made in Misc. Case No. 59 of 1980, under Section 125, Cr.P.C.

2. Facts, – Kanaklata Devi instituted Misc. Case No. 59 of 1980 under Section 125, Cr.P.C, in the Court of Judicial Magistrate of the First Class, Mangaldoi against her husband Santi Ram Sarma. The Magistrate awarded the wife a sum of Rs. 100/- as monthly maintenance allowance from the date of passing the order. Against that order, the husband filed CM No. 249(D-2)85 before the Sessions Judge. The Sessions Judge while dismissing the revision petition enhanced the award of maintenance of Rs. 100/- to Rs. 200/- – hence this petition by the husband.

3. Mr. Munir, learned counsel for the petitioner, has contnded that enhancement of award of maintenance was made without giving the petitioner an opportunity of being heard in violation of the provisions under Section 401(2), Cr. P.C. and, therefore, the Sessions Judge has exercised his jurisdiction illegally.

4. Section 401(2), Cr. P. C, runs as follows;

“No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence”.

(Emphasis added)

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In view of Section 401(2), before making any prejudicial order against a person, he should have an opportunity of being heard. This provision is in consonance with the principles of natural justice and, therefore, any order made to the prejudice of any person will be fatal and bad in law – unless he had been given an opportunity of being heard either personally or by pleader.

5. It is not disputed that no formal notice was given to the petitioner to show cause against enhancement of the award of maintenance. The question then is, — Whether a notice of hearing should be given formally? Section 401(2) does not prescribe any particular formality to be complied with before any action is taken under Section 401(2). It only provides that no order shall be made to the prejudice of a person unless he has had an opportunity of being heard either personally or by pleader. Therefore, if the petitioner was heard personally or through his lawyer on the question of enhancement of award of maintenance, though no formal notice was given to him, the requirement of Section 401(2) is satisfied.

6. The records of the case including the judgment does not show that the petitioner had an opportunity of being heard on the question of enhancement of maintenance allowance. Therefore, the order of enhancement made by the Sessions Judge Darrang made on 27-2-86 in CM No. 249(D-2) 85 is illegal and is hereby quashed. However, liberty is given to the respondent to apply for enhancement of maintenance allowance under the provision of Section 127, Cr. P.C. if need be so.

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7. In the result, the petition is allowed to the extent indicated above. It is made clear that the award of maintenance made by the Magistrate is affirmed.

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