NARANAPPA Vs. PUTTAMMA

JUDGEMENT

(1.) The sole point for my consideration in this petition is whether the order passed under Section 488(1) of the Code of Criminal Procedure by the City Magistrate, Bangalore fixing up the monthly allowance for the maintenance of the respondent merely (sic) affidavits filed by the parties is legal and valid.

(2.) The respondent filed an application before the City Magistrate under Section 488 of the Criminal Procedure Code against the present applicant stating that she was his legally-wedded wife, that during her illness he had married a second wife and that he had refused to maintain her. She prayed for a monthly allowance of Rs. 50/-. In his written statement the present petitioner while admitting many of the averments, contended that he never refused to maintain his wife and that being a carpenter his income was very meagre.

(3.) At the hearing, the parties filed their respective affidavits on 6-2-1962. The Magistrate heard arguments on 6-3-1962 and passed the impugned order on 14-3-1962. The sole contention raised by the learned Advocate for the petitioner is that the order passed by the City Magistrate was bad in law as it was not based on the evidence re-corded by him. Section 488(6) of the Criminal Procedure Code lays down that "All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases". The proviso to this sub-section is not relevant. It is obvious from the wording of this sub-section that all evidence under this chapter shall be recorded in the manner prescribed in the case of summons-cases. The provision prescribing the manner for recording the evidence during an enquiry under Section 488(6) is mandatory. Section 244 which prescribes the procedure for trial of summons-cases provides that the Magistrate, when he does not convict the accused on his admission, shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution, hear the accused and take all such evidence as he produces in his defence. In what manner such evidence shall be recorded is prescribed by Section 355 of the Code. According to that Section, in summons-cases tried before a Magistrate other than a Presidency Magistrate, the Magistrate shall make a memorandum of the substance of evidence of each witness as the examination of the witness proceeds. Such memorandum has to be written and signed by the Magistrate with his own hand and forms part or the record. Where the Magistrate is prevented from making a memorandum as required under sub-sections. (1) and (2) or Section 355, he shall record reasons for his inability to do to and shall cause such memorandum to be made in writing from his dictation in the open Court and shall sign the same. The combined effect of all these provisions is that they obviously require that a Magistrate holding an enquiry under Section 488 must make a memorandum of the substance of the evidence of each witness examined by each of the parties to the proceeding. There is no provision for deciding such a case on affidavits.