(1) This is a reference under Section 438 Cr. P. C. by the first Additional Sessions Judge, Bangalore, recommending that the order of the learned First Class Magistrate, Civil Station, Bangalore, passed in Criminal Misc. Case No. 6/665, dated 13-10-1965 be set aside.
(2) One Safeera Bee filed an application under Section 488 Cr. P. C. on 23-3-63 against Hyder Khan, claiming maintenance on the ground that she had been neglected, in the court of the First Class Magistrate. Civil Station, Bangalore. Summons to Hyder Khan was issued on two or three times and the same could not be served on him. Ultimately, summons was returned by the Police with an endorsement that the summons could not be served on Hyder Khan and that fresh summons may be issued. Again summons was issued to Police on 1-4-63 for service. The Police made attempts to serve Hyder Khan on 2-4-63, but failed, and returned the summons. On 3-4-63, the learned Magistrate examined the Police Officer, who had been entrusted with the summons. On that evidence, he was satisfied that Hyder Khan was deliberately evading to receive the summons.
Therefore, he held the service sufficient and as Hyder Khan was absent, he passed an ex parte order on 5-4-63, directing Hyder Khan to pay maintenance at the rate of Rs. 50 per month. After the said order was passed, the learned Magistrate issued distress warrants on 2-8-63, 25-9-63, 6-11-63 and 28-11-63 at the instance of Safoora Bee, but they were not executed. On 13-12-63, another distress warrant was issued and that was executed by the police on 8-1-64. The Sub-Inspector of Police, who executed the warrant, returned the warrant with a mahazar, stating that there was nothing valuable to be attached belonging to Hyder Khan and at the time of the execution of the warrant, Hyder Khan was present. Again another warrant was issued and that was executed by the Police on 13-4-64, on which date a radio and a cycle belonging to Hyder Khan were attached. On coming to know of the attachment, Hyder Khan filed an application in Cri. Misc. Application No. 6/65 on 8-5-64, requesting the court to set aside the ex parte order. The learned Magistrate found that the application was barred by time and accordingly dismissed it.
(3) This application was undoubtedly more than three months from the date of the order. The learned Magistrate was justified in rejecting the application. Aggrieved by that order, Hyder Khan preferred a revision petition in the court of the Sessions Judge, Bangalore. The learned Sessions Judge, on facts, came to the conclusion that the learned Magistrate erred in coming to the conclusion that the application was barred by time and therefore, he has made this reference.
(4) If the facts are examined, the only conclusion that could be arrived at is that Hyder Khan did not exercise due diligence in filing his application to set aside the ex parte order within three months as provided under Sec 488 (6) Cr. P. C. He challenged the ex parte order on the ground that he had no knowledge of the order, he filed the petition within three months. His contention was found to be untenable in view of the evidence adduced on behalf of Safoora Bee. On facts, the learned magistrate came to the conclusion that the petition filed by Hyder Khan was hopelessly barred by time. The learned Sessions Judge was in error in going into facts. The mere fact that there is a possibility of coming to a different conclusion on facts is no ground to make a reference to this Court under Section 438 Cr. P. C. the reference made by the learned Sessions Judge is incompetent.
(5) The period of three months specified in the proviso to sub-section (6) of section 488 Cr. P. C. is to run from the date of the order and not from the date of knowledge of the order. In A. S. Govindan v. Mrs. Margaret Jayammal, : AIR1950Mad153 , it was held that the period of three months does not mean three months from the date of knowledge of the order. Where the application is made more than three months from the date of the order, it is liable to be dismissed. Following the principle laid down in this case, it was pointed out in Hari Singh Ishar Singh Jat v. mst. Dhanno Hari Singh, 1962 92) Crl. LJ 581 (Punj), that the period of three months required by sub-section (6) of Section 488 for an application to set aside an ex parte order of maintenance has to be reckoned from the date of the ex parte order which is sought to be set aside and not from any other date. This is irrespective of the date on which the petitioner obtains the knowledge of the order. Hence, an application for setting aside the ex parte order made by the petitioner beyond the period of three months from the date of the order is liable to be rejected by the Magistrate.
(6) For the foregoing reasons, the reference is not maintainable and is accordingly rejected.
(7) Reference rejected