Home > DV Judgements > HC: Merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other of law under which the order could be validly made.

HC: Merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other of law under which the order could be validly made.

Syed Naim S/O Syed Vajir vs Samina Syed Naim on 27 September, 2011
Bench: A. V. Potdar

{1} CWP No.482/2011

drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.482 OF 2011

Syed Naim s/o Syed Vajir PETITIONER Age-31 years, Occ-Private Service

As a Driver, R/o Bank Colony,

Parali Road, Ambajogai,

Tq-Ambajogai, Dist-Beed

VERSUS

1. Samina Syed Naim RESPONDENTS Age-27 years, Occ-Household

R/o Pimpalner, Tq & Dist-Beed

2. Syed Ayan s/o Naim Syed

Age-5years, Since Minor

u/g of respondent No.1

3. Syed Anam s/o Naim Syed

Age-7 years, Since Minor

u/g of respondent No.1

…….

Mr.S.S.Thombre, Advocate for the petitioner Mr.N.L.Jadhav, Advocate for the respondents

…….

[CORAM : A.V.POTDAR, J.]

th September 2011

DATE: 27

ORAL JUDGMENT:

 

1. Rule. Rule made returnable forthwith. Heard finally by {2} CWP No.482/2011

consent.

 

2. This petition, under Article 227 of the Constitution of India, is directed against the judgment dated 30.05.2011 passed by Sessions Judge, Beed in Criminal Revision No.92/2010 by which the learned Sessions Judge has confirmed the order dated 29.10.2010 passed below Exhibit-22 in Criminal Miscellaneous Application No.586/2008.

 

3. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus-

Respondent No.1 has filed an application under the Domestic Violence Act before JMFC, Beed bearing Miscellaneous Criminal Application No.205/2008. A separate application, seeking interim maintenance and certain other directions was filed on 18.06.2008. Application for interim maintenance was contested by the petitioner-husband, however the same came to be allowed on 21.08.2008. It is observed by the trial court that the petitioner to pay financial assistance @ Rs.5000/- u/s 20 of the Domestic Violence Act to the respondents. It appears that thereafter an {3} CWP No.482/2011

application for execution of the said order came to be filed by respondent No.1 in the trial Court. The application for execution was filed on 29.11.2008 for recovery of the maintenance amount for 3 months totaling to Rs.15,000/-. It further appears that along with the said application one more application was moved by the respondent u/s 465 of the Criminal Procedure Code, seeking correction of the operative part of the order dated 21.08.2008 as it remained to be mentioned that the financial assistance @ Rs. 5000/- ‘per month’ be paid. The words “per month” are remained to be mentioned in the operative order. It appears that on 06.08.2010, the petitioner-husband raised objection that the Magistrate cannot correct or modify his own order, once the same is declared and signed. Vide order dated 29.10.2010, the application moved by the respondent came to be allowed by the Magistrate by observing that the correction sought by the respondent is a typographical error and it can be corrected under the powers vested in the Magistrate. It appears that being aggrieved by the said order, the petitioner filed Criminal Revision Application No.92/2010 before Sessions Court, Beed. The said Criminal Revision came to be dismissed vide order dated {4} CWP No.482/2011

30.05.2011, which is impugned in the present petition.

4. Learned counsel for the petitioner urged that in the given circumstances the learned Magistrate has no power to carry out the corrections in the order passed u/s 465 of the Criminal Procedure Code as those powers are vested with the appellate or revisional court. Learned counsel for the petitioner relied on section 362 of the Criminal Procedure Code, which prohibits the Court from making any correction in the judgment and order once the same is signed. Therefore, it is urged that the impugned order, being illegal, be quashed and set aside.

 

5. It is further urged that the application is filed by the respondent in the execution proceedings and hence the same is not maintainable. I am not in agreement with this submission as the execution proceedings is continuation of the original proceedings and hence to file an application in the execution proceedings, which is part of the original proceedings, is perfectly legal. Therefore, the submissions of learned counsel for the petitioner, in this behalf are turned down.

{5} CWP No.482/2011

 

6. While opposing these submissions, learned counsel for the respondents urged that the correction carried out on the application moved by the respondents are not modification or alteration of the order passed by the learned Magistrate, but he has only corrected the clerical error and has not changed the text of the order. It is further urged that perusal of section 362 would indicate that though the order or judgment is signed by the concerned criminal court, yet on noticing any clerical or typographical error, the same can be rectified and the same would not amount to any illegality.

 

7. Considering these submissions, at this juncture, it may be useful to refer the observations in “State of Karnataka V/s Muniyalla” 1985 AIR SC 470, wherein it is observed that “merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other of law under which the order could be validly made. Mere recital of a wrong provision of law does not have the effect of {6} CWP No.482/2011

invalidating an order which is otherwise within the power of authority making it.”

 

8. In the light of the ratio laid down by the Apex Court in the judgment cited supra, though the trial court could not have passed the impugned order u/s 465 of the Criminal Procedure Code yet the Sessions Court has rightly observed that the correct provision to modify the order is not u/s 465 but u/s 362 of the Criminal Procedure Code. Perusal of the text of section 362 Criminal Procedure Code indicates that it prohibits the Court to modify or alter the judgment once signed, however it also makes it clear that if any clerical or typographical mistake is noticed then it is within the powers of the Court concerned to correct the typographical error. Admittedly, what is corrected by the trial Magistrate is an arithmetical and typographical mistake. It is to be considered that this application is maintainable u/s 362 of the Criminal Procedure Code, which is the correct provision to be applied for carrying out the correction of the typographical error in the operative part of the impugned order. Therefore, I do not notice any illegality in the impugned orders in allowing the prayer of the {7} CWP No.482/2011

respondent and hence the petition is liable to be dismissed.

9. Consequently, the petition, which is sans merits, stands dismissed. Rule stands discharged.

[A.V.POTDAR, J.]

drp/B11/c2p482-11

http://indiankanoon.org/doc/1625581/

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