BALESHWARI DEVI Vs. BIKRAM SINGH

JUDGEMENT

(1.) This reference under Section 438 of the Code of Criminal Procedure has been made by the Additional Sessions Judge of Arrah for setting aside the order passed on the 5th November, 1966, in a proceeding under Section 488 of the Code of Criminal Procedure, whereby the Magistrate has held that the proceeding is not maintainable in his court as the opposite party resides in another sub-division of the some district (the date of the order has been wrongly mentioned as 3-11-66. in the letter of reference of the Additional Sessions Judge).

(2.) It appears that the petitioner at whose instance the reference has been made was residing at the time of filing her petition under Section 488, Code of Criminal Procedure, at a place within the Buxar sub-division and the opposite party, who is admittedly her husband, was residing at a place within Sasaram sub-division. Both Sasaram and Buxar sub-divisions appertain to the same district, that is the Shahabad district. The opposite party filed an objection petition in the court of the Magistrate to the effect that as he resides within Sasaram Sub-division and the petitioner had admittedly last resided with him in that very subdivision, the case was not maintainable in any court within the Buxar subdivision. This contention was accepted by the learned Magistrate and he accordingly directed the petitioner to apply under Section 488, Code of Criminal Procedure, to the Sub-divisional Magistrate under whose jurisdiction her husband was residing The petitioner moved the Sessions Judge against this order and the learned Additional Sessions Judge, who heard the matter, has made the reference for settina aside the above order on the ground that the Magistrate at Buxar had jurisdiction to entertain the proceeding in view of the provision of Sub-section (8) of Section 488, Code of Criminal Procedure.

(3.) Sub-section (8) of Section 488, Coda of Criminal Procedure, provides as follows: