TMI Blog1985 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... some default in respect of their income relating to the assessment year 1972-73. Hence, the Department filed a complaint in March, 1976, for prosecution of the petitioner and her husband under the provisions of sections 277 and 278 of the Incometax Act. The complaint remained pending without much action and in the meantime in 1978, the husband of the petitioner died, with the result that the petitioner alone became the accused. The Income-tax Department did not produce any document or evidence till September 7, 1983. The said Department produced some documents on September 8, 1983. After recording of evidence, the magistrate discharged the petitioner. On April 16, 1984, the Income-tax Department filed a revision petition against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Prasad Singh v. Kali Singh, AIR 1977 SC 2432. In that the following proposition of law was laid down (p. 2433): " We, however, need not dilate on this point because there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. The Code of Criminal Procedure does contain a provision for inherent powers, namely, section 561A which, however, confers these powers on the High Court and the High Court alone. Unlike section 151 of the Civil Procedure Code, the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.P. [1985] 1 Crimes 924. In that, it was held that a criminal court can restore an application for restoration of another application dismissed in default. Learned counsel further relied upon a judgment of the Andhra Pradesh High Court in S. A. Venkatesu v. Venkatamma [1976] Crl LJ 220, which judgment was also relied upon by the learned Sessions Judge in his impugned order. There is no doubt that it is well settled that a criminal revision petition cannot be dismissed for default ; the same must be dismissed on merits only. However, if a court wrongly dismisses such a revision petition, there is no provision of law which gives jurisdiction to such a court to set aside its wrong order. Rather, section 362 of the Code is a complete ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code which reads as under : " (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." In fact, the proceedings under section 125 of the Code are not strictly criminal in nature inasmuch as there is no accused and no question of any punishment. Under these circumstances, the judgment of M. S. Joshi J. has no application in respect of the proceedings which are strictly criminal in nature. Reliance of learned counsel for the respondent was also on a judgment of the Supreme Court in Grindlays Bank Ltd. v. Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code (section 362), there is a complete bar and prohibition against the review and that being so, the learned Additional Sessions Judge could not review his own judgment. Learned counsel for the respondent lastly contends that if this court is of the view that the impugned order dated October 27, 1984, is not legal and should be set aside by this court, the court can also exercise its inherent powers under section 482, Criminal Procedure Code, and set aside the order dated May 18, 1984, also with the direction that the court should decide the revision petition on merits. He added that the court need not enter into the formalities of first obtaining an application from the respondent for setting aside the order dated May 18, 1984, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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