Code
(1) Proceedings under section 125 may be taken against any person in any district–
(a) where he is, or
(b) where he or his wife resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:
Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
STATE AMENDMENT
Andhra Pradesh and Telangana.–
Amendment of section 126–In the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act) in section 126, in sub-section (1), for clause (b), the following shall be substituted, namely:–
“(b) where he or his wife resides, or where his parents or children resides, or;”
[Vide Andhra Pradesh Act 18 of 2007, s. 2]
Explain it
This section outlines the process a Magistrate must follow when they become aware of an offense. It emphasizes the importance of due process and ensures that no action is taken without proper investigation and consideration.
Key points of Section 126 include:
- Cognizance of Offenses: A Magistrate can only take cognizance of an offense based on specific grounds outlined in the CrPC. These grounds include:
- A complaint made by a person alleging that an offense has been committed.
- Information received from a police officer.
- A report of an investigation conducted by the police.
- Duty of the Magistrate: The Magistrate has the duty to examine the information received and decide whether there is sufficient ground to proceed with an investigation.
- No Cognizance Without Investigation: A Magistrate cannot take cognizance of an offense unless an investigation is conducted, except in certain specified cases where immediate action is required.
- Power to Order Investigation: If the Magistrate considers that there is sufficient ground to proceed, they may order an investigation to be conducted by the police.
Illustrate it
Imagine a situation where a person is injured in a road accident. The victim files a complaint with the police, alleging that the driver of the other vehicle was driving recklessly. The police investigate the matter, collect evidence, and submit a report to the Magistrate. The Magistrate, upon examining the report and other evidence, will decide whether to take cognizance of the offense of negligent driving and order further investigation or action.
Common Questions and Answers
Q: What happens if a Magistrate takes cognizance of an offense without proper investigation?
A: Such action would be considered illegal and could be challenged in a higher court. Section 126 emphasizes the importance of due process and prevents hasty action.
Q: Can a Magistrate take cognizance of an offense based on hearsay evidence?
A: Generally, no. Hearsay evidence is not considered reliable enough to warrant taking cognizance. However, there might be exceptions in certain cases.
Q: What are the consequences of failing to comply with the procedures outlined in Section 126?
A: Failing to follow the prescribed procedures could lead to the case being quashed in a higher court. It could also result in disciplinary action against the Magistrate.
