CHHEDI LAL Vs. STATE OF U P

JUDGEMENT

(1.) This applica tion under Sec. 482 of the Code of Criminal Procedure arises from an order of the City Magistrate, Varanasi, dated 16th January, 1979 in a case for execution of an order under Sec. 488 of the Code of Criminal Procedure, 1898. The objection taken by the applicant is that the City Magistrate being an Executive Magistrate he has had no jurisdiction to entertain the proceeding after the enforcement of the Code of Criminal Procedure, 1973. There is substance in the objection and the learned Assistant Government Advocate conceded that the position after the enforcement of the Code of Criminal Procedure, 1973 was that an order passed by an Executive Magistrate under Sec. 488 of the Code of Criminal Procedure 1898, had to be executed by the Judicial Magistrate concerned as an order under bee. 125 of the Code of Criminal Procedure, 1973, That being so, the order passed by the City Magistrate, Varanasi on 16th January, 1979 has to be quashed as being without jurisdiction, but that does not in my opinion, conclude the matter, for the opposite-party wife, who has an order of maintenance in her favour and applied for execution thereof, cannot be blamed for filing the applica tion in the court of the Executive Magis trate, inasmuch as the legal position was not free from doubt and has only recently been settled. Under the circum stances I consider it fit and proper in this case to quash only the order passed by the City Magistrate, Varanasi on 16th January, 1979 and not the proceeding initiated by the application for execution; and further order suo moto that the said proceeding shall be transferred to the court of the Chief Judicial Magistrate, Varanasi, who may either dispose of the same himself or assign it to another Judicial Magistrate of competent Jurisdiction. In the result, the application succeeds and is allowed. The order of the City Magistrate, Varanasi dated 16th January, 1979 is quashed, but the proceeding for execution of the order of maintenance under Sec. 488 of the Code of Criminal Procedure, 1898, initiated by the wife Smt. Shahti Devi against her husband Chhedi Lal in the court of the City Magistrate, Varanasi shall be transferred to the court of the Chief Judicial Magistrate, Varanasi, who may either dispose of the same himself or assign it to another judicial Magistrate of com petent jurisdiction. The Chief Judicial Magistrate, Varanasi will take steps to have the case disposed of as speedily as possible. .