Ram Prasanna Dash vs Bhabani Dev : 1992 (2) HLR 607 : 1992 (2) DMC 134 : 1992 (2) CCR 1725 : (1990) 3 OCR 344 : (1990) 1 OLR 548 : 1990 LRC Online 4 (Ori)
Section 125-Maintainability of proceedings-Consideration-Term "any order made in a proceeding under section 125" should be given a wider meaning and not a restrictive one : in order words in an appropriate case the term may also include the order to initiate the proceeding under S. 125 and call upon the opposite party to show cause on the application-Such an interpretation will help in avoiding unnecessary harassment to the parties and waste of time of the court in a case where ex facie, the proceeding under S. 125 is not maintainable-magistrate in seisin of proceeding under S. 125 of CrPC should consider the question of maintainability of proceeding raise before him and should deal with it before proceeding further in the case.
Held : On giving my anxious consideration, I am inclined to take the view that the term "any order made in a proceeding under Section 125" should be given a wider meaning and not a restrictive one; in other words in an appropriate case the term may also include the order to initiate the proceeding under Section 125 and calling upon the opposite party to show cause on the application. Such an interpretation, in my view, will help in avoiding unnecessary harassment to the parties and waste of time of the Court in a case where ex facie, the proceeding under Section 125 is not maintainable. Viewed from another angle, this question of maintainability may not be of much significance. Generally speaking, in a case where objection to maintainability of the proceeding on the ground of lack of jurisdiction of the Court or want of locus standi on the part of the applicant is raised, it is apt and proper that the Court should consider the question of maintainability first before proceeding to consider the case on merit. Therefore, whether the objection relating to maintainability of the proceeding is raised by filing an objection in the proceeding under Section 125 or by filing an application under Section 127(2) of the Code is more a matter of form and should not create any serious difficulty on the part of the Magistrate to consider the question. Depending on the facts and circumstances of the case, the Magistrate in seisin of the proceeding under Section 125 of the Code should consider the question of maintainability of the proceeding raised before him and should deal with it before proceeding further in the case.