JUGATAMBALAL J GANDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These proceedings are initiated by the High Court suo motu on a letter addressed to the Registrar of the High Court by one Jugtambalal J. Gandhi an advocate practising at Dhrangadhra. The said advocate drew the attention of this court that in maintenance appli- cations filed under sec. 125 of the Criminal Procedure Code 1973 the practice followed by the learned Magistrate is to call the applicant for verification as contemplated by sec. 202 of the Code and that this practice is not warranted by law because an application for maintenance filed under sec. 125 of the Code is not a complaint contemplated by sec. 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 Magistrates 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 sec. 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 :

(3.) Reference to sec. 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 sec. 192. This section finds its place in ch. IV which relates to complaints to Magistrates. It is obvious that this provision as regards the inquiry before issuing the process which is contemplated by sec. 202 is adopted by the learned Magistrate on receipt of the wifes petition for maintenance under sec. 125 of the Code.