Bibi Zainab vs Anwar Khan

Pande, J.—This petition is against the order of the Sub-divisional Magistrate of Hajipur by which he rejected the petitioner''s petition u/s 488, Criminal P.C., for maintenance. It appears that the application was made by the wife of the opposite party to the Magistrate on 23rd June 1944, and the Magistrate issued notice upon the husband to show cause why he should not be directed to pay maintenance of Rs. 20 per month. The opposite party appeared on the date fixed and took time. On the text date the opposite party filed a petition alleging that the wife of the petitioner was living in adultery. The Sub-divisional Magistrate referred the matter to the Sub-Registrar of Mehnar for enquiry and report. On receipt of the report the Magistrate appears to have considered some divorce certificate and other papers which bore thumb impression and then dismissed the application of the petitioner by his order dated 4th September 1944. She then moved the Sessions Judge of Muzaffarpur who rejected the petition as not maintainable. Thereupon a petition was filed before this Court and it was admitted.

A preliminary objection has been taken on behalf of the opposite party to the effect that the application is barred by time as it was filed long after the order was made by the Magistrate. The learned advocate for the petitioner referred to a decision in Lalo Mahto and Another Vs. Emperor, where a similar objection was raised regarding an application against conviction u/s 426, Penal Code. Verma J. rejected the objection with the observation that once a revision case has come before the High Court it can deal with it under Sections 485 and 439, Criminal P.C., and it is not necessary for the High Court to see whether the petition was made within 60 days particularly as there is no limitation prescribed by statute for such petition. I think that once a petition has been admitted by the Court it has got to be considered on its merit and the plea of limitation does not apply particularly when there is no period prescribed by the statute for such application. Therefore the preliminary objection fails. As to the merit it has been urged by the learned advocate for the petitioner that the Sub-divisional Magistrate was wrong in treating the application u/s 488 as a complaint and in referring it to the Sub-Registrar for enquiry and report. There are certain reported decisions in which it has been already held that an application u/s 488, Criminal P.C., is not a criminal complaint within the meaning of the Criminal Procedure Code. It is sufficient to refer to one case: Maher Khan v. Mt. Bakhta Bhari AIR 1929 Lah. 32.

Therefore, the petition riot being a complaint could not have been properly referred to another officer for enquiry u/s 202, Criminal P.C. The procedure dealing with an application under that section is laid down in that section itself. Clause (6) of the section provides that all evidence under that Chapter shall be taken in the presence of the husband or father as the case may be, or when the personal attendance is dispensed with, in the presence of the pleader. The Section clearly contemplates that the enquiry should be made by the Magistrate himself and that function cannot be delegated to another officer.

In the present, case the learned Magistrate on receiving the Sub-Registrar''s report appears to have given no opportunity to the petitioner to meet the report, rather he took upon himself the function of a finger print expert in comparing the petitioner''s signature on a certain paper said to be a divorce paper and one other paper. The learned Magistrate might have studied the art of examination of finger print, but the proper procedure in such cases is to examine a fingerprint expert, for, the Magistrate by himself comparing the signature rendered himself a witness in the case. On the whole it appears to me that the application of the petitioner was rejected after enquiry of a very summary nature, and that is not a regular order.

Therefore the order of dismissal of the application must be set aside arid the case remitted to the Magistrate for disposal in accordance with law.