T.U. Mehta, J.
1. These proceedings are initiated by the High Court suo motu on a letter addressed to the Registrar of the High Court by one Jugtambhai J. Gandhi, an Advocate Practising at Dhrangadhra. The said advocate drew the attention of this Court that in maintenance applications filed under Section 125 of the Criminal Procedure Code, 1973, the practice followed by the learned Magistrate is to call the application for verification as contemplated by Section 202 of the Code and that this practice is not warranted by law, because, an application for maintenane filed under Section 125 of the Code, is not a 'complaint contemplated by Section 202 of the Code. On receipt of this letter, this Court exercised suo motu jurisdiction as the point involved was of general importance as regards the practice to be adopted by the courts of the Magistrate in such cases in this state. Notices were issued to the parties and to the Government Pleader by this court.
2. The facts of this case show that one Lalitaben Chaturbhai filed a maintenance application under Section 125 of the Code in the court of the J.M.F.G. Dhrangadhra. The applicant was not personally present for verification and, therefore, the learned Magistrate has passed the following order:
Heard, Applicant is absent when called out. Application to be presented when applicant is present in person so as to enable the court verification of contents and thumb mark as well as identity. Application to be kept sine die till then.
The simple question which arises to be determined is whether the above procedure which is adopted by the learned Magistrate is warranted by the provisions of the law or not.
3. Reference to Section 202 of the Code of Criminal Procedure, 1973 shows that it contemplates an inquiry into the case by Magistrate himself before issuing process against the accused on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192. This section finds its place in ch. IV which relates to complaints to Magistrate. It is obvious that this provision as regards the inquiry before issuing the process, which is contemplated by Section 202, is adopted by the learned Magistrate on receipt of the wife petition for maintenance under Section 125 of the Code.
4. It is obvious that provisions of Section 202 of the Code apply only to a 'complaint' of an offence. Therefore, the question is whether an application for maintenance filed under Section 125 of the Code can be treated as a complaint of an offence. The word complaint is defined in Section 2(d) as meaning any allegation made orally or in writing to a magistrate, with a view to his taking Action under this code, that some person, whether known or unknown, has committed an offence. The word offence is defined in Clause (n) as meaning any Act or omission made punishable by any law for the time being in force. When an application for maintenance under Section 125 of the code is made, there is obviously no allegation of the commission of any offence and if that is so, the application in question cannot be treated as a complaint as defined in Clause (d) of Section 2. It is therefore obvious that the procedure of inquiry contemplated by Section 202 before issuance of the process cannot govern the applications for maintenance made under Section 125. Section 126 of the code states about the procedure in maintenance applications. Sub-section (1) thereof says that proceedings under Section 125 may be: taken against any person in any district where he is, or where he or his wife resides or where he last resided with his wife. Sub-section (2) of this section says that 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. This sub-section obviously refers to the procedure of recording evidence and says nothing about the procedure which should be followed before issuing the process. The procedure prescribed for recording evidence in summons cases is found in Chapter XX. But this procedure is to be adopted only after the accused appears before the court and the evidence is recorded. Under these circumstances, there is nothing in law which shows that before issuing the process in maintenance petitions, the court concerned should call upon the petitioner for the purpose of verification.
5. In Nand Lal Misra v. Kanhaiya Lal Misra : 1960CriLJ1246 , the Supreme Court has considered the provisions of Section 488 of the old code and has held that this section does not contemplate a preliminary inquiry before issuing a notice but lays down that all evidence under that chapter should be taken in the presence of the respondent or his pleader, indicating thereby that one inquiry only should be held after notice. This principle should govern even the petitions for maintenance filed under the provisions of the Code of 1973.
In view of this, I find that the order passed by the learned J.M. F.C. Dnrangadhra keeping the petition of the wife sine die till she appeared before the court for the purpose of verification is not justified by law. The said order is therefore set aside and the learned magistrate is ordered to consider the question whether the process should be issued or not without insisting upon the personal presence of the petitioner for the purpose of verification. Rule is accordingly made absolute.