A W KHAN Vs. ZAITUNBI

JUDGEMENT

(1.) THE applicant A. W. Khan is the husband of Zaitunbi and father of Mt. Nur Jahan, aged 3 years. According to the applicant an application Under Section 488, Criminal P. C. was made by Mt. Zaitunbi for maintenance of herself and her child (Miscellaneous criminal Case no. so of 1947 ). After some evidence had been recorded, the application was dismissed for default of appearance of Zaitunbi on 8th January 1949. tihe filed a second application under B. 488 on practically the same facts (Miscellaneous criminal case No. 216 of 1948 ).

(2.) THE applicant raised an objection to the maintainability of the application. The objec. tion was overruled by Bhri N. P. Bharadwaj, Magistrate, First Class, Raipur, by his order dated 18th February 1919. In his view the application was not barred as the previous application had been dismissed for default and there was no adjudication on merits. The applicant filed criminal Revision No. 120 of 1949 in the Court of the Sessions Judge, Raipur, who upheld the order of the learned Magistrate. He repelled the contention that the dismissal of the proceedings operated as an acquittal. The view taken by both Courts is challenged before me in this revision.

(3.) THE contention of Shri R. K. Vermai counsel for the applicant, is that the procedure laid down for summons oases is applicable to the hearing of applications Under Section 488, Criminal P. C. Chapter xix, Criminal P. C governs such an application and the result of nonappearance of the complainant on that date, i. e. , 8th January 1949, was the acquittal of the applicant. Section 403, Criminal P. C. bars a second application on the same facts. I do not accept the contention of the applicant.