H.N. Kapoor, J.
1. This reference has been made by the Additional District and Sessions Judge, Bulandshahr by his order dated July 17. 1974. in Criminal Revision No. 8 of 1974 with the recommendation that the order passed by the Magistrate dated 9-1-1974 dismissing the application under Section 488. Criminal Procedure Code of the revisionist be set aside.
2. The facts of the case are that the revisionist Smt. Ramwati had originally applied for maintenance in the year 1969 and that application was decided on the basis of a compromise when the opposite party Udai Singh agreed to supply food grain etc for her maintenance. He also agreed to make arrangements for her residence and said supply one she-buffalo and gave her one bigha of land also. It appears that an order was passed under Section 488, Criminal P.C. on the basis of the compromise arrived at. On 14-2-1972 Smt. Ramwati moved an application under Section 488(3). Criminal P.C. claiming arrears for one year although she had not been paid anything for 2 1/2 years. V. She estimated the price of six maunds of wheat at Rs. 240/-, six maunds of Makka et Rs. 180/- and one maund of gur at Rs. 60/-. total Rs. 480/- which she was to get from her husband for one year. Notice was issued on the basis of that application. Udai Singh filed an objection that Smt. Ramwati was living in adultery with her sister's husband Moti Singh and as such she was not entitled to any further maintenance. No order could be passed on that application as the record of the original case under Section 488, Criminal P.C. was not available.
The application was, therefore, ordered to be consigned to the record room till the record could not be traced out. Under these circumstances. Smt. Ramwati moved another application under Section 488, Criminal P.C. on 3-1-1974 for maintenance. That application was also opposed on the ground that she was living in adultery. .It was further opposed on the ground that it was barred by the principle, of res judicata as incorporated under Section 403. Criminal P.C. The learned Magistrate dismissed this application on 9-1-1974 solely on the ground that it was barred by the principles of res judicata. He had given facts and also mentioned about the objections raised by Udai Singh but has not given any finding on the point whether she was living in adultery and as such was not entitled to any maintenance. The learned Sessions Judge has taken the view that the second application was not barred.
3. With the help of Sri G.C. Saxena. learned Counsel for the opposite party. I have considered the law on this point. In the case of Km Nafis Ara v. Asif Saadat Ali Khan. : AIR1963All143 . B.N. Nigam, J., had held that the provisions of Section 403, Criminal P.C. do not apply to an application under Section 488. Criminal P.C. which is not a trial. He had even held that the second application on the same facts under Section 488. Criminal P. C, was not barred, though normally it would not be allowed. In that case the first application had been dismissed and new facts had been alleged in the second application In the case of Nathu Ram v. Smt. Ramsri 1964) All LJ 72 : 1965-1 Cri LJ 273. D.S. Mathur, J. (as he then was) took the view that the second application was maintainable when the first application had been dismissed on the basis of a compromise.
There can be no doubt that Section 403. Criminal P.C. does not apply to an application under Section 488, Criminal P.C. which is not a trial. But cetainly it is not intended by the legislature that repeated applications should be moved one after another on the same facts. There is a provision under Section 489. Criminal P.C. which clearly provides for making alterations in the allowance as originally sanctioned on proof of a change in the circumstances. Section 489(2) further provides that the original order can be cancelled or varied in consequence of any decision of the competent civil court. A second application under Section 488 Cr.P.C. can be considered with the help of Section 489 Cr.P.C. because it will have ultimately the effect of modifying the original order, once maintenace had been allowed.
4. learned Counsel for the opposite party has argued that in both the cases cited above, the original application had been dismissed and as such different considerations will arise when the maintenance had been ordered on the basis of the previous application. According to him. no second application under Section 488. Criminal P.C. can lie under the circumstances of the present case. I have already observed above that it is not the intention of the legislature that repeated applications should be moved on the same facts. But at the same time there is no bar in moving a second application as has been held in the above cited decisions. Under the special circumstances of the present case when no fixed cash maintenance had been allowed to the revisionist because of the compromise, a second application could certainly lie for allowing cash maintenance.
The final order passed in the second application will certainly have the effect of modifying the original order of maintenance passed in 1969 under Section 489, Criminal P.C. with effect from the date from which it is made effective. For the period prior to that date it will be open to the revisionist to claim maintenance according to the previous order under Section 488(3). Criminal P.C. It was the duty of the Magistrate to get the record reconstructed instead of ordering the application under Section 488(3}. Criminal P.C. to be consigned to the record room for an indefinite period. However, the second application can be decided even in the absence of the record of the original application of 1969 on merits. It will, of course, have the effect of modifying or altering the previous order passed on the earlier application of 27-11-1969 with effect from the date from which it is made effective.
5. In the result the reference is accepted and the order of the Magistrate dated 9-1-1974 is set aside. The case is sent back to the Magistrate concerned for deciding it afresh on merits in the light of the observations made above.