1. This Rule is at. the instance of the second partv petitioner. Sri Ramkrishna Bose. against' an order dated the 21st March, 1970 passed by Sri A. K. Mitra. Magistrate, 1st Class Sealdah in. case no. M. 148 of 1969/T. Rule 71 of 1970, rejecting the second party's objection to the maintainability of the application for maintenance Under Section 488. Criminal. Procedure Code filed by the first-party Sm. Gouri Bose. on the ground of iurisdiction. .
2. The facts leading on to the Rule are rather chequered. The parties, who are husband and wife, belong to respectable families but their relationship unfortunately become strained, shortly after their marriase leading on to a criminal case and two applications for maintenance. The husband as stated in his show cause petition, is employed as an Art Counsellor, State Institution of Education, Delhi while the wife, who was at the time of her marriaae. a student in the B. A. Class, is the daughter of a recognized educationist, since retired, and is well-connected. The criminal case, instituted by the wife, against the; husband and others Under Sections 420. 406 and 420/120B IPC is now pending in appeal. The first application for a maintenance of Rs. 300/ per month, being case no. M. 24 of 1968. was filed by . the wife before the Police Magistrate at Sealdah Under Section 488 Criminal Procedure Code on the 23rd May. 196$ against the second party on grounds of cruelty, neglect and refusal to maintain. A preliminary objection was raised by the husband on the ground of jurisdiction and Sri R.K. Ganguly. Police Magistrate. Sealdah by his order dated the 2nd July, 1968 dismissed the wife's application on that ground, holding inter alia that 'the fact that the O. P. has attended this Court from time to time in connection with the criminal case pending before this Court against him, in my opinion, does not confer any iurisdiction upon this Court to entertain the proceeding'. The present application for maintenance, being the second one, was filed about one vear three months thereafter on the 26th August, 1969 in the court of the Police Magistrate, Sealdah on the % same ground and claiming the same amount as on the previous occasion, with the added averment made therein that the husband was residing at 19A. Ananda Palit Road, P. S. Entallv. Calcutta for attending the criminal case under sec- tions 420. 406. 417 and 120B IPC pending against him and as such 'is' residing within the jurisdiction of the Police Magistrate's Court, besides his residence with the first partv in 1967 at P. 309. C. I. T. Road, Calcutta. The second party showed cause on the 19th February. 1970 contending inter alia that the Sealdah Court has no iurisdiction to entertain the application Under Section 488 Criminal Procedure Code as he was neither residing within the iurisdiction of the Sealdah Court on the date of the application nor did the wife last resided with him therein nor even he 'is' within the jurisdiction of the said court at the time of the filing of the application. The learned Magistrate thereafter heard both the sides, regarding the maintainability of thx> proceedings on the around- of iurisdiction, and ultimately rejected the petition of the second party. objecting to the maintainability of the proceedings and transferred the case to the file of Sri K. C. Mallick for disposal. This order has been impugned and forms the subject-matter of the present Rule.
3. Mr. Prasun Chandra Ghosh. Advocate. (with Mr. Ramendranath Chakrabortv. Advocate) appearing in support of the Rule on behalf of the second party petitioner raised a short point relating to the maintainabilitv of the proceedings at the Sealdah Court on the around'of jurisdiction under Sub-section (8) to Section 488 Criminal Procedure Code. The steps of Mr. Ghosh's reasoning are that there must be animus man-endi or an intention to stav for an indefinite period; and that a mere temporary or a flyine visit to a place will not bring the case within the ambit of 'is' and confer iurisdiction on the court concerned. He also cited several cases which will be considered in their proper context. Mr. Nalin Chandra Baneriee, Advocate (with Mr. Jvotish Chandra Bose, Miss Meera Mallick and Miss Krishna Ghosh, Advocates) appearing on behalf of the first party opposed the Rule. He submitted that iurisdiction at this stage is to be determined on the averments made in the petition of complaint and in view of the clear and specific statements made in paragraphs 14 and 15 of the said petition of complaint that the first party was residing at the time at 19A. Ananda Palit Road. P. S. En'tallv. Calcutta in connection with the criminal case against him and some others pending al'Alipore. the present case comes within the purview of 'is' as enjoined in Sub-section (8) to Section 488 of the Code of Criminal Procedure. Mr. Baneriee contended in this context that the word 'is' has wider import than 'resides' or 'last resided' and is not limited by the animus manendi of the person or the duration or the nature of the stav. His mere physical presence even if he does, not work for gain in that iurisdiction. will do. Several cases were also cited by the learned Advocate and the same will be -considered in due course.
4. For a proper consideration of the point at issue oiie has to turn to the provisions of the statute. Sub-section (8) to Section 488 Criminal Procedure Code provides as follows: 'Proceedings under this section may be taken against any person in any district where Jie resides or is, or where he last resided whether with his wife or as the case may be the mother of the illegitimate child'. It appears therefore that three tests have been laid down to determine iurisdiction in a case of maintenance of wives - and children viz., where the person proceeded against resides or the place where he last resided or the place where he is at the time when the application is filed. If this triple test is not fulfilled the application filed by the first party would be bad for absence of iurisdiction and therefore not maintainable in law. It is pertinent now to refer to the pleadings which only at this stage would confer iurisdiction on the court concerned or rule out the same. The application for maintenance filed on the 26th August. 1969 is on the same ground and based on the same claim- as on the previous occasion excepting that there 4s an added averment made therein in paragraphs 14 and 15. Paragraph 14 is as follows: 'that the opposite party at present residing in Calcutta, 19A Ananda Palit Road. P. S. Entally and is attending this Court to answer the aforesaid criminal case Under Sections 420. 406, 417 and 120B, IPC pending in this Court.' Paragraph 15 states 'that the opposite party therefore is residing and 'is' within the iurisdiction of this Court, besides his residence with the petitioner in 1967 as aforesaid at P. 309, C. I. T. Road. Calcutta, which is within the jurisdiction of this Court'. In his show cause petition filed on the 19th February. 1970. the second partv averred in paragraph 17 as follows: 'that with reference to the statements made in paragraph 14 the O. P. submits that the allegations are absolutely false and the O. P. further Submits that he never resided or is at present residing at 19A, Ananda Palit Road. P. S. Entallv, Calcutta. As a matter of fact the O. P.. has never seen and/or visited the premises at 19A, Ananda Palit Road. That being so. the statements made in paragraph 15 of the petition are wholly irrelevant and this is nothing but a recourse to a chance for filing this petition once again.' It was further averred in paragraph 19 that 'the statements made in paragraph 17 of the petition are false and the O. P. submits that whenever he comes to Calcutta to attend vour Honour's court m connection with the criminal case by the petitioner he stavs at Bhadreswar in the district of Hooghly'. It was also submitted in paragraph 21 that the- present application ,was made in order, to circumyent the court's previous order dated the 2nd July, 1958 passed on the earlier application for maintenance filed by the first party -and a. copy of the said order was submitted therewith marked as annexure 'A'. The report dated, the 9th September. 1967 submitted by the process-server before the Police Magistrate at Sealdah. states that the notice of the application Under Section 488 Criminal Procedure Code could not be served on the second party at 19A. Ananda Palit Road as he had already left for Delhi on 26-8-69.' In paragraph 4 again of the petition filed in court, upon which the the present Rule was issued, the second partv petitioner referred to the previous order of dismissal dated the 2nd Julv, 1968 on the ground of jurisdiction. In paragraph 5 of the said petition, it was stated that the present application for maintenance as filed by the wife mere-lv added one paragraph referring to the stay of the husband at 19A, Ananda Palit Road, Calcutta and that petition was already filed in the court below objecting to the purported iurisdiction. To determine ultimately the point of iurisdiction. the aforesaid materials on the record have to be considered in the light of the principles laid down in the various decisions from time to time by the different High Courts as also the Supreme Court.
5. In support of his contention Mr. Prasun Chandra Ghosh. Advocate referred to the case of In re: Khairun-aaissa reported in A.I.R. 1929 Bom 410 and decided by Patkar and Wild JJ. At page 411 Mr. Justice Patkar relied on the principles laid down in the case of Arther - Flowers v. Minnie Flowers reported in ILR (1910) 32 AH 203 (Full Bench) and held that a mere temporary sojourn in a place there being no intension of remaining there, would not amount to residence in that place within the meaning of Section 3 of the Divorce Act, 1869 so as to give iurisdiction under the Act to the court within the local limits of whose iurisdiction such place is situated and ultimately observed at page 412 -that 'It would follow from these decisions that where the husband and wife had a fixed place of abode or a permanent place of residence, a casual or temporary residence in any other place would not confer iurisdiction on the court situate at that place'. The principles laid down in this case have undergone a material change after the deci- sion of the Supreme Court in Mst. Jagir. Kaur v. . Jaswant Singh, reported in : 2SCR73 and the said case which has been cited by Mr. Baneriee would be considered later on. The next case referred to by Mr. Ghosh is that of Charan Das v. Mst. Surasti. Bai, reported in A.I.R. 1940 Lah 449 decided by Chief Justice Young and Mr. Justice Ramlall. Mr. Justice Ramlall after considering several authorities observed at page' 451 that 'The principle deducible from these authorities appears to be that in the case o:E persons who have a fixed residence, a visit to another place for however Ions a period, so long as it is casual, will not confer jurisdiction....The sole test on the auestion of residence appears to be whether a party has 'animus manendi'. or an intention to stay for an indefinite period at one place; and if he has certain intention then alone can he be said to 'reside' there. It was ultimately held by the Division Bench in the facts of that case that 'a person who works and has a permanent home in Lahore cannot by his visits during a period of casual leave, confer iurisdiction on the Sargo-dha courts'. The concept of animus manendi again- is no longer the sole test for determining the iurisdiction. in view of the decision of the Supreme Court in Mst. , Jagir Kaur's case as referred, to above. Mr. Ghosh next referred to the case of Panchugopal Modak v. Dolly Modak reported in (1955) 59 C. W. N. page 767. Mr. Justice P. N. Mookeriee referred to and relied on Stroud's Judicial Dictionary 3rd Edn. (1952 Vol. 1) where at page 270 the learned author said that the word 'is' is of wider import than 'reside' and pinpointed the observations referred to therein of Martin. B.. in the case of Attorney General v. Me. Lean reported in (1863) 8 LT 113 at page 117 strongly supporting the wider construction suggested by Stroud. He ultimately 'held at page 770 that 'the word 'is' in the phrase 'resides or is' in Section 488 of the Code of Criminal Procedure is of much wider import than residence, permanent or temporary and it is comprehensive enough to include the regular place of business of the party concerned or the place, where he regularly works for sain'. The principles laid down in the aforesaid decisions however do not cover the present case wherein the point involved is not whether iurisdiction can be conferred on the Sealdah Court because the husband regularly or usually works for gain within its bounds but as to whether a mere casual or a flying visit to a place within the said iurisdiction, even' without animus manendi. 'on the part of the husband, can confer such jurisdiction, I will now turn to the cases cited by Mr. Banerjee. The first case referred to by him is the case of Mrs. F. H. Jollv v. St. John William. reported in 21 Cal WN 872 ~ (A.I.R. 1918 Cal 785). In that case instituted Under Section 488 Criminal Procedure Code.before the Chief Presidency Magistrate. Calcutta, it appears that the husband ordinarily resided outside Calcutta but was temporarily there on the date the application was filed and for some davs previously. In his own affidavit the husband specifically admitted that he was in fact in Calcutta on business from the 29th November, till 9th of January. The Division Bench ultimately held that 'oby iously the residence of the husband in Calcutta from the 16th to the 23rd January when that application was made, is sufficient to give the court iurisdiction having regard to Sub-section (9) of Section 488 Cr.PC ' The facts of the said case are however Quite different from the case under consideration. The husband has denied here specifically in his show-cause petition the factum of his purported stav at 19A, Ananda Palit Road. P. S. Entallv, in connection with attending the criminal case started by the wife Under Sections 420, 406. 417 and 120B I, P.C. far less an affidavit admitting that he was in Calcutta on business for some months. The next case cited by Mr. Baneriee is the case of Sarat Chandra Basu v. Biiov Chand Mahatab, reported in 64 Ind Arp 77: (A.I.R. 1937 PC 46). It was observed therein at pages 85 and 86 that 'the expression 'resides' as used in Section 33 is not defined in the Statute, but there is no reason of assuming that it contemplates only permanent residence and excludes temporary residence'. The principles laid down by the Judicial Committee however do not help Mr. Baneriee in his present submissions. In the first place the observations v/ere made in the context of a different Act viz., the Indian Registration Act (XVI of 1908) and secondly the point at issue in the present case does not centre round a temporary residence but a mere casual visit to a place within the iurisdiction concerned. Mr. Baneriee next relied on the case of Mt. Indu Bala Devi v. Sat-chid Prosad. reported in A.I.R. 1939 Cal 333. Mr. Justice Edglev interpreting the expression 'where he resides or is or where he last resided with his wife' observed that 'this expression is certainly, in my opinion, sufficiently wide to confer iurisdiction upon the Chief Presidency Magistrate in a case in which the opposite par'ty works for Sain within the iurisdiction of his court, even though he may not have a permanent residence within such jurisdiction'. The said observations however do not lend assurance to the present contentions of Mr. Baneriee because the point for consideration is not a mere temporary residence or a place where he works for gain but a place whereto a mere flvine visit is given by the husband and that also not in his own choice. It is even admitted by the wife in her application made Under Section 488, Code of Criminal Procedure, and the present petition before the High Court that the husband is employed as an Art Consultant at the Science Centre at Delhi. The last cases cited by Mr. Baner.iee is the wellknown case reported in A.I.R. 1963 SC 1521. The said decision is an important one laying down a new approach to the provisions contained in Section 488 Criminal Procedure Code. It is observed therein that chapter XXXVI of the Code of Criminal Procedure, providing for maintenance of wives and children, intends to serve a social purpose and that Section 488 of the Code prescribes alternative forums to enable the deserted wife or a helpless child, to get urgent relief. It is necessary therefore to refer to the principles laid down therein in some details, Mr. Justice Subba Rao (as His Lordship then was) delivering the judement of the court observed at- page 1524 that 'the first word is 'resides'...the said word has been subject to conflicting judicial opinion...the purpose of the statute would be further served if the word 'resides' was understood to include temporary residence. The iuxta-position of the words 'is' and 'last resided' in the sub-section also throws light on the meaning of the word 'resides' ' It was further observed that 'there is also a broad unanimity that it means something more than a flying visit to or for a casual stav in a particular place'. They agreed that there shall be animus manendi or an intention to stav for a period, the length of the period depending upon the circumstances of each case'. As to the meaning of the expression , 'last resided', the Supreme Court proceeded to observe that 'the cognate expression 'last resided' takes colour from the word 'resides' used earlier In the . sub-section. The same meaning should be given to the word 'resides' and the word 'resided''. It was further observed at page 1525 that 'the verb 'is' connotes in the context -the presence or the existence of the person in the district when the proceedings are taken. It is much wider than the word 'resides'; it is not limited by the animus manendi of the person or the duration or the nature of his stay. What matters is his physical presence at a Particular point of time'. Thereafter two illustrations have been given, out of many which. could be visualized. The first one relates to a person who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country but returns to that district or a neighbouring one on a casual or a flving visit. The wife can then take advantage of his visit and file her application in the district where he is during his stay. The second one relates to the husband who deserts his wife but has no permanent residence and is always on the move. The facts in the present case are however clearly distinguishable. The second party here is not alleged to have gone to a distant place or even to a foreign country having deserted the wife in a particular district, returning to the said place or a neighbouring one on a casual or a flving visit; nor is the second party in this case a person without a permanent residence, 'always on the move' so that the first party 'can catch him at a convenient place and file a petition Under Section 488 of the Code'. Apart from the same one other distinguishable feature that sticks out for miles is that the presence of the husband in Calcutta in the Sealdah iuris-diction is not a voluntary visit, casual or otherwise, but is compelled at the instance of the wife and in answer to the processes of the court.
6. On a consideration of the provisions of the statute and the imprimatur of the iudicial decisions and on an appraisal of the materials on the record, I ultimately hold that 'neither' the circumscribed interpretation given by Mr. Ghosh to the words 'resides or is or where he last resided' in Sub-section (8) to Section 488 Cr.PC ruling out a casual or temporary residence not accompanied by animus manendi in order to confer iurisdiction on the court con-ceVned nor the too broad interpretation of the said words by Mr. Baner.iee so as to include even a mere physical presence at a particular place at a point of time, though by wav of a flving visit and bereft of the previous context, can do duty. The word 'is' inserted in between ' the words 'resides' and 'last resided' is undoubtedly of a much wider import than mere residence permanent or temporary and not limited by the animus manendi of the person concerned but the ultimate determination of iurisdiction in a particular case will depend on the relevant facts thereof. The principles laid down in the case of Mst Jagir Kaur are undoubtedly broad but not broad enough to cover the facts of the present case, which is highlighted by several distinguishing features. The facts of the - present case as referred to above, run off at a tangent from the ambit of the principles laid down by the-Supreme Court and a failure to consider the same has resulted in a failure of justice. As was observed in the case of United States v. Rodenburgh reported in (936) 14 Fed. 2d 989 'every question . of law arises out of a fact situation and if there be no set of fact there can be no Question of law.' It is also pertinent to refer to the observations of Lord Chancellor Halsburv in the case of Quinn v. Leatham reported in 1901 App-Cas 495 at page 506 that 'a case is onlv an authority on what it actually decides and it cannot be quoted for a proposition that would seem to follow logically from it'. In the facts and circumstances of the case therefore, the contention raised by Mr. Prasun Chandra Ghosh, obiecting to the iurisdic.tion of the Police Magistrate at Sealdah to proceed with the enquiry Under Section 438 Criminal Procedure Code succeeds.
7. The point at issue may also1 be approached from another stand point viz. the rule of issue estoppel. The point of iurisdiction was raised earlier by the second party in connection with the application filed by the wife Under Section 488 Cr.PC being case No. 24 of 19,68 and Sri R.K. Ganguly, Police Magistrate. Sealdah by his order dated the 2nd July. 1968 clearly held that the Sealdah court had no iurisdiction to entertain the application. It was observed inter alia that 'the fact that the O. P. has attended this Court from time to time in connection with the criminal case pending before this Court against him. in my opinion does not confer any iurisdiction upon this Court to entertain the proceedings'. The said order was not challenged but after the lapse of about one year and three months another application for maintenance was filed in the same court viz. before the police magistrate at Sealdah, on the same ground as on the previous occasion and claiming the same amount, with the added averment only that the husband was putting up at the time at 19A, Ananda Palit Road. P. S. Entally. Calcutta 'and is attending this Court tp answers the aforesaid criminal case Under Sections 420. 406. 417 and 120B IPC' As already observed before, there are ultimately no new facts. The rule of issue estoppel in a criminal trial is that where issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused such a finding1; would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of thej accused for a different or distinct offence but as precluding the reception of evi-' dence to disturb that finding of fact when the accused is tried subseauentlv even for a different offence which might be permitted by the terms of Sub-section (2) to Section 403 Criminal Procedure Code. The rule certainly is distinct from the plea of double ieopardv or autrefois acauit, A reference in this context may be made to the case of Manipur Administration, Manipur v. Thokchom Bira Singh reported in 0065/1964 : 7SCR123 wherein Mr. Justice Raiagopala Ayyangar delivering the judgment of the court observed at page 91 that 'as we have pointed out earlier. issue estoppel does not prevent the trial of any offence as does autrefois acauit but only precludes evidence being led to prove a fact in issue as regards which evidence has alreadv been made and a specific finding recorded in an earlier criminal- trial before a court of competent jurisdiction'. It was ultimately bserved at page 93 that 'it is therefore clear that Section 403 of the Criminal Procedure Code does not preclude the applicability of the rule of issue estoppel'. The present case though not a trial but an enquiry attracts the said principles and it is to be noted that the enquiry is under the same Section 488 of the Code of Criminal Procedure and on the same grounds as on the earlier occasion when the objection to iurisdiction was raised j-and accepted by a court of competent iurisdiction. It is. therefore abundantly clear that the facts of the present case Under Section 488 Criminal Procedure Code are Quite distinct from those ob-jtaining in the decision of the Supreme Court in Mst. Jagir Kaur's case as also of the other cases referred to above by Mr. Baneriee. In view of the previous order passed by the Magistrate on the ground of iurisdiction the rule of issue estoppel shall apply to the present case, I have given the matter my anxious consideration more so because the party affected is the wife, but I am compelled ultimately to hold ex debito ius-titiae that the present proceedings Under Section 488 Criminal Procedure Code at Sealdah are barred for absence of iurisdiction. I make it quite clear, however, that I have made no observations on the merits of the case and the same, would abide determination in an enquiry before the proper fo-rum.
8. In the result.-the Rule is made absolute; the'order dated the 21st March. 1970 passed by Sri A. K. Mitra. Magistrate. 1st Class, Sealdah. in case No. 148/69 T. Rule 71 of 1970. is. set. aside: and the objection by the 2nd party to the jurisdiction of the police magistrate at Sealdah to proceed with the enquiry Under Section 488 Criminal Procedure Code is upheld.