NATHOO Vs. STATE AND SMT. BHOORI

JUDGEMENT

(1.) An application under Sec. 488 Code of Criminal Procedure (Old) was filed before the Sub -Divisional Magistrate, Aonla by Srimati Bhoori claiming maintenance against her husband Nathoo. The Sub -Divisional Magistrate allowed the application and passed an order on 12th September, 1973 granting Rs. 50/ -per month as maintenance allowance. A revision was filed by Nathoo before the Sessions Judge, Bareilly. That revision was dismissed by the Sessions Judge on 15th July, 1974 i. e. after the coming into force of the New Criminal Procedure Code, 1973. On 13th September, 1974 an application was filed before the Sub -Divisional Magistrate for the enforcement of his order directing payment of the maintenance allowance. The husband appeared and filed an objection to the effect that the Sub -Divisional Magistrate Aonla had no jurisdiction to pass any order and that under Sec. 125 of the New Code of Criminal Procedure the Judicial Magistrate of the first class was empowered to entertain the application. This objection was rejected by the Sub -Divisional Magistrate on 23rd April, 1975. Aggrieved thereby a revision was filed before the Secessions Judge, Bareilly which has been dismissed on 11th September, 1975. Hence the present application under Sec. 482 Code of Criminal Procedure.

(2.) I have heard counsel for the parties and have also perused the impugned orders. I do not agree with the submission made by the applicant's counsel that this application did not lie before the Sub -Divisional Magistrate by a fiction of law introduced in Sec. 484(2) Code of Criminal Procedure (New) orders passed under the old Code are deemed to have been passed under the New Code of Criminal Procedure. In the instant case no fresh order was being sought from the Court. The application filed by Shrimati Bhoori was merely for the enforcement of the order passed by the Sub -Divisional Magistrate, Aonla prior to the coming into force of the New Code of Criminal Procedure i. e prior to 1st April, 1974. As such, in my opinion, the application filed on behalf of the wife was maintainable.

(3.) Even if I accept the submission of the applicants' counsel that the application did not lie before the Sub -Divisional Magistrate and should have been filed before the Judicial Magistrate, I am not inclined to interfere with the impugned order for the simple reason that it would not foster the ends, of justice. The Additional District Judge, Bareilly while concluding his judgment has made the following observation :