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A.W. Khan Vs. Mt. Zaitunbi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1950CriLJ451
AppellantA.W. Khan
RespondentMt. Zaitunbi and ors.
Excerpt:
- - in this view there was no acquittal of the applicant on 8th january 1949 and section 403 has clearly no application......n. p. bharadwaj, magistrate, first class, raipur, by his order dated 18th february 1919. in his view the application was not barred as the previous application had been dismissed for default and there was no adjudication on merits. the applicant filed criminal revision no. 120 of 1949 in the court of the sessions judge, raipur, who upheld the order of the learned magistrate. he repelled the contention that the dismissal of the proceedings operated as an acquittal. the view taken by both courts is challenged before me in this revision.3. the contention of shri r. k. vermai counsel for the applicant, is that the procedure laid down for summons oases is applicable to the hearing of applications under section 488, criminal p.c. chapter xix, criminal p. c governs such an application and.....
Judgment:
ORDER

V.R. Sen, J.

1. The applicant A. W. Khan is the husband of Zaitunbi and father of Mt. Nur Jahan, aged 3 years. According to the applicant an application Under Section 488, Criminal P.C. was made by Mt. Zaitunbi for maintenance of herself and her child (Miscellaneous criminal Case no. so of 1947). After some evidence had been recorded, the application was dismissed for default of appearance of Zaitunbi on 8th January 1949. tihe filed a second application under B. 488 on practically the same facts (Miscellaneous criminal case No. 216 of 1948).

2. The applicant raised an objection to the maintainability of the application. The objec. tion was overruled by Bhri N. P. Bharadwaj, Magistrate, First Class, Raipur, by his order dated 18th February 1919. In his view the application was not barred as the previous application had been dismissed for default and there was no adjudication on merits. The applicant filed criminal Revision No. 120 of 1949 in the Court of the Sessions Judge, Raipur, who upheld the order of the learned Magistrate. He repelled the contention that the dismissal of the proceedings operated as an acquittal. The view taken by both Courts is challenged before me in this revision.

3. The contention of Shri R. K. Vermai counsel for the applicant, is that the procedure laid down for summons oases is applicable to the hearing of applications Under Section 488, Criminal P.C. Chapter xix, Criminal P. C governs such an application and the result of non-appearance of the complainant on that date, i. e., 8th January 1949, was the acquittal of the applicant. Section 403, Criminal P.C. bars a second application on the same facts. I do not accept the contention of the applicant.

4. There is is no acquittal in proceedings Under Section 488 of the Code. There should be a trial of an offence before there can be an acquittal or a conviction. Offence is defined in Section 4 (o), Criminal P. O. as follows :

Offence' means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made Under Section 20, Cattle Trespass Act

Neglect to maintain one's wife and children is not an offence within the meaning of 8. 4 (o) of the Code. A finding of a Magistrate ordering a person to pay a certain amount of money for the maintenance of his wife and children does not amount to a conviction for an offence. The object of the proceedings Under Section 488 is to Becure maintenance for a woman and her children speedily and to secure that end the machinery is provided in Chap, xxxvi, ibid,

5. Even though in recording evidence procedure for summons oases may be adopted that fact alone will not convert the proceedings Under Section 488 into summons cases. In a criminal case a trial cannot proceed in the absence of an accused unless his absence or attendance has been exempted for sufficient reason, In proceedings Under Section 488 the Magistrate is competent to hear the case ex parte and allow or disallow maintenance, It will thus be clear that the default in maintaining the wife and children is not regarded as an offence as defined in Section 4 (o), Criminal P.C. In this view there was no acquittal of the applicant on 8th January 1949 and Section 403 has clearly no application. Second application was therefore maintainable and the view taken by the two Courts was correct. I am supported in my view by the decisions in Mehra Khan v. Bahkat Bhari 29 Cri. L J. 1002 : A.I.R. 1929 Lah. 32 Monmohan v. Surabala Dasi A.I.R. 1920 cal. 38 : 21 Cri. LJ 8 Maung Hla Maung v. Ma On Kin 5 Rang. 697 : A.I.R. 1927 Rang. 328 : 28 Cri. L.J. 912 and Ma Saw May v. O Aung Thein A. I.L.R. 1935 Rang. 277 : 36 Cri. L.J. 1391 In Monmohan v. Surabala Dasi A. I. R. 1920 Oal. 38 : 21 Cri LJ 3.3 it was held that where an application for maintenance Under Section 488, is dismissed for default without any adjudication being made on the merits, it is open to the complainant to make fresh application under that section.

6. The learned Counsel for the applicant referred to In re Chhagan Hargovan A. I. R. 1932 Bom 179 : 33 Cri. LJ 461 Crown v. Laxmi Prasad : 41 Cri. LJ 919 Demello v. Mrs. Demllo A.I.R. 1926 Lah. 667 : 27 Cri. LJ 1000 and Mehra Khan v. Balcat Bhari A.I.R. 1929 Lah. 32 : 29 Cri. LJ 1002 in support of his application. These case are not applicable.

7. The application fails and is dismissed.


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