SHINGHAL, J - (1.) PETITIONER Ram Ratan has applied for a revision of the order of learned Magistrate First Class No. 1, Jodhpur, dated March 26, 1962, granting a maintenance allowance of Rs. 25/- per mensem to non-petitioner Smt. Meena. The learned Magistrate held that Smt. Meena was the wife of Ram Ratan and was entitled to the grant of the maintenance allowance, and although that order was assailed in the court of session, the revision petition was dismissed by the Additional Sessions Judge, Jodhpur on June 20, 1962.
(2.) THE only point which has been urged by the petitioner's learned counsel in this Court is that as all the evidence in the case was not taken in the presence of the husband and as the husband's personal attendance had not been dispensed with so as to justify the recording of the evidence in the presence of his pleader, the order of the learned Magistrate cannot be said to be in conformity with the provisions of sub-section (6) of section 483 Cr. P. C. It has further been argued that those provisions are mandatory and that the impugned order should therefore be set aside for that reason. As no other argument has been advanced before me, it is not necessary to state the facts of the case in any detail. It would be sufficient to mention that Smt. Meena claimed that she was the wife of Ram Ratan who treated her with cruelty and had neglected to maintain her. It is not in dispute that Ram Ratan was earning Rs. 100/- per mensem as a "signal-helper" in the railway. Ram Ratan denied that Smt. Meena was his wife or that he had treated her with cruelty and his main defence in the Magistrate's court was that he was not the husband of Smt. Meena. That contention was, however, rejected by the learned Magistrate for satisfactory reasons and the finding in that respect has not been assailed in this Court. The short question for decision therefore is whether the impugned order of the learned Magistrate could be said to be illegal for non compliance with the provisions of sub-section (6) of section 488 Cr. P. C. which runs as follows, - "488 (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when the personal attendance is dispensed with, in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases: Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglected to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order may be set aside for good cause shown, on application made within three months from the date thereof. " The learned counsel are in agreement that the case does not fall within the purview of the proviso for it cannot be said that the learned Magistrate had heard or decided the case ex-parte, and the question therefore is whether the remaining provisions of the sub-section have been duly complied with. In other words, the question is whether the evidence in the case was taken in the presence of the husband or in the presence of his pleader by dispensing with his personal attendance. In order to decide this question, it is necessary to mention some procedural details. On receipt of Smt. Meena's application for grant of maintenance allowance under section 488 Cr. P. C. , the learned Magistrate made an order for the issue of notice to Ram Ratan to show cause why he should not be called upon to pay the allowance and fixed January 30, 1961 as the next date of hearing. On that date, the Magistrate was not present and the case was adjourned to February 27, 1961. The non petitioner and his counsel appeared in the court on February 27,1961. Copies of the application of Smt. Meena and her affidavit were given to the non-petitioner on that date and he was asked to file his reply on March 16,1961. Although the non petitioner was not present on the adjourned date of hearing, a reply was filed on his behalf by his counsel. Thereafter, there were a dozen other adjournments and it appears that Ram Ratan's counsel was present at all the hearings and cross-examined the witnesses of Smt. Meena whose evidence was closed on August 2,1961. Before that date, Ram Ratan was himself present on June 3, 1961, when one of the witnesses of Smt. Meena was examined, that witness was cross-examined in the presence of Ram Ratan. Although an order was made on August 2, 1961, for production of evidence in rebuttal, it appears that no witness was examined inspite of four adjournments and Ram Ratan's evidence was therefore closed by an order of the learned Magistrate dated December 22, 1961. Before that date, Ram Ratan appeared personally on October 9, 1961, and he was therefore aware that he had been called upon to produce his evidence in the case. Ultimately, the learned Magistrate heard the arguments on January 15, 1962, and passed the final order on March 26, 1962, referred to above. It has been argued by Mr. Kalla that as the revision petitioner did not apply to the Magistrate for dispensing with his personal attendance in the case, and as all the evidence was not recorded in his (petitioner's) presence, there was a contravention of the provisions of sub-sec. (6) of sec. 488 Cr. P. C. and the impugned order of the learned Magistrate should therefore be set aside because those provisions are mandatory. Learned counsel has placed reliance on Rupchand Issardas vs. Emperor (1), Vankatrao vs. Rukminibai (2) and Anil Ranjan Sen vs. Smt. Anuprama Sen (3) in support of his argument. On the other hand, it has been argued by Mr. Govindmal that as Ram Ratan appeared at least on three different dates of hearing before the Magistrate, and as his counsel was present throughout and cross-examined all the witnesses of Smt. Meena, it is not open for him to contend that the evidence has not been taken according to the law. The learned counsel has cited Babu Lal Kurmi Khalasi vs. Shanti Bai (4) and Major Jogindar Singh vs. Bibi Raj Mohinder Kaur (5) to support his contention. In order to decide the controversy, it is necessary to examine the nature of the proceedings under sec. 488 Cr. P. C. There can be little doubt that an application under that section is not a "complaint" within the meaning of sec. 4 (1) (b) of the Code of Criminal Procedure for there is no question of the commission of any offence. The expression "offence" has been defined in sec. 4 (1) (c) to mean any act or omission made punishable by any law for the time being in force, and as no punishment has been provided for failure to maintain one's wife or child, the proceedings arising on an application under sec. 488 Cr. P. C. cannot be said to relate to an offence. The person against whom such an application is made is not an accused and this seems to be the reason why sec. 353 Cr. P. C. which provides for the taking of all evidence in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader, does not refer to Chapter XXXVI relating to the maintenance of wives and children. Moreover, unlike the other provisions of the Code, the proviso to sub-sec. (6) of the sec. 488 authorises a Magistrate to hear and determine a case ex-parte in certain circumstances and sub-sec. (7) even provides for the making of an order as to costs of the case. It is therefore obvious that the section is meant to provide a swift and cheep remedy against a person who having sufficient means neglects or refuses to maintain his helpless wife or child. The right to maintenance can no doubt be enforced by a civil suit wherever that is permissible under the personal law of the parties, but it is also open to the wife or child to obtain a redress by an application under sec. 488 Cr. P. C. Thus the proceedings in a civil suit for grant of maintenance and in an application under sec. 488 Cr. P. C. converge on the question of grant of maintenance to the destitute wife or child. There can be little doubt, therefore, that the proceedings under sec. 488 Cr. P. C. are of a quasi-civil nature. I am fortified in this view by the pronouncements made in Mehr Khan vs. Bakat Bhari (6), Manug Ba Tun vs. Ma Kyway (7), Bibi Zainab vs. Anwar Khan (8), Jaswantsinghji Fatheh Singhji Thakore vs. Kesuba Harisingh Dipsinghji (9), Karnail Singh vs. Mst. Bachan Kaur (10), Dr. T. K. Thayumanuvar vs. Asanambal Amnal (11) and Subayya Gounder vs. Bhoopala Subarmanian (12 ). In some of these cases, the proceedings under Sec. 488 Cr. P. C. have been held to be quasi-criminal but in all of them it has been held that they are not purely criminal proceedings in the strict sense. As a matter of fact these proceedings partake more of civil than criminal character and it would not therefore be proper to decide this case on the principles applicable to the trial of an accused in a criminal case. Viewed in this perspective, it is significant that while Ram Ratan was present only on three dates of hearing before the Magistrate, his counsel was present all through and cross-examined all the witnesses of Smt. Meena. As has been mentioned Ram Ratan appeared personally on February 27, 1961 and copies of the application of Smt. Meena and her affidavit were given to him for filing a reply on the next date of hearing. Although he did not appear on March 16, 1961, a reply was filed by his counsel. He, however, attended the court personally on June 3, 1961 when the statement of Smt. Meena's last witness Bhajan Das P. W. 4 was recorded. Later, her evidence was closed and an order was made on August 2, 1961, calling upon Ram Ratan to produce his evidence in rebuttal on September 9, 1961. No such evidence was produced on that date and Ram Ratan was present when the case was again taken up on October 9, 1961. However, no witness was examined in rebuttal and it is not contended that an adequate opportunity or facility was not given by the learned Magistrate in that connection. All these facts make it quite clear that although a part of the evidence was recorded in Ram Ratan's presence, the whole of it was recorded in the presence of his counsel. It is true that there is no application on the record showing that Ram Ratan applied for exemption from personal attendance and there is also no express order of the learned Magistrate granting that concession to him. But there can be little doubt that the facts and circumstances of the case can safely lead to the inference that the learned Magistrate virtually dispensed with the personal attendance of Ram Ratan and thought it sufficient to record the evidence in the presence of his counsel. The word "shall" has no doubt been used in sub-sec. (6)of S. 488 Cr. P. C. in laying down the requirement that all evidence in proceedings under Ch. XXXVI shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, but the use of the word "shall" does not appear to be mandatory in view of the nature of the proceedings under that Chapter so as to justify the argument that the failure to comply strictly with the provisions of sub-sec. (6) of sec. 488 necessarily vitiate the proceedings. As the proceedings are of a quasi-civil nature, the requirements of the sub-section are, in substance, directory and the question is whether there has been any prejudice because the provisions of the sub-section have not been complied with strictly. Mr. Kalla, learned counsel for the revision petitioner, was specifically asked to show what prejudice could possibly be said to have been caused to Ram Ratan simply because the learned Magistrate did not record a formal order exempting him from personal attendance during the course of th. 3 proceedings. All that Mr. Kalla could suggest was that although in his written reply Ram Ratan had challenged Smt. Meena's contention that she was his wife, questions were not put in cross-examination to bring that out. According to the learned counsel, this deficiency arose because Ram Ratan was not personally present when the witnesses were examined. The argument does not, however, bear scrutiny, for it appears that all the witnesses of Smt. Meena, except Bhajandas P. W. 4, were cross-examined by Ram Ratan's counsel to demolish her claim that she was Ram Ratan's wife, and Ram Ratan was personally present when Bhajan Das was examined. Moreover, it is difficult to appreciate how the cross-examination would have been more effective if the learned Magistrate had recorded a formal order granting exemption from court attendance to Ram Ratan. It is significant that although Ram Ratan was personally present on three different dates of hearing, he did not raise an objection before the learned Magistrate that all the evidence had not been recorded in his presence inspite of the fact that his personal attendance had not been dispensed with. I have no doubt, in these circumstances, that the argument which has now been advanced to challenge the impugned order of the learned Magistrate on the ground that the evidence had not been recorded in strict conformity with the provisions of sub-section (6) of sec. 488 Cr. P. C. , is merely an argument of despair, which must be rejected as an after-thought. Babu Lal Kurmi Khalasi v. Shanti Bai (4) and Major Jogindar Singh's case (5) support the view which I have taken. A contrary view has no doubt been taken in the three cases cited by the learned counsel for the revision petitioner. The earliest of these cases is Rupchand Issardas's case (1) and it was held in it that the direction in sub-section (6) of section 488 Cr. P. C. is peremptory and that in the absence of direct evidence such as an application by the person concerned that his presence should be dispensed with, or an order of the Magistrate that in the circumstances which necessitated his absence a dispensation of his presence should be directed, there would be no room for inference that an order under first part of the sub-section had in fact been made. Their Lordships have, however, made the following further observation: - "in certain cases it may not be necessary that the Magistrate should pass a formal order in writing, but we think that at least there must be present on the record circumstances which indicate clearly that the question of dispenstion of personal attendance of the husband or the father was considered by the Magistrate. " It would thus appear that their Lordships subscribed to the view that in certain cases it may not be necessary for a Magistrate to pass a formal order of exemption from personal attendance in-writing and that the circumstances of the case might indicate that the question of grant of exemption was considered by him. For reasons already stated, a similar inference can safely be drawn in the present case and it is reasonable to infer that the learned Magistrate impliedly agreed to dispense with the personal attendance of Ramratan who was content to allow the evidence to be recorded in the presence! of his counsel. It may also be mentioned that the facts of Roopchand Issardas's case were vestly different because while his counsel filed a written statement denying the liability to pay the maintenance and disputing the amount claimed, he thereafter, conceded that there was a liability to pay the maintenance and so the Magistrate passed an order awarding the maintenance. Roopchand Issardas, it seems, appeared only once during the course of the proceedings but by then no progress had been made in the case, so that it was not possible to say that he was aware of the developments and had ratified what his counsel had done so as to lead to an inference that the Magistrate had impliedly granted an exemption from personal attendance. It appears that in Venkatrao's case (2) the revision petitioner was present through his pleader but the court did not make any order dispensing with his presence and it did not also appear that it had directed its mind to that question. It was held that the direction in sub-section (6) of section 488 is peremptory and that no presumption or inference could arise in the absence of either any application by the non-petitioner for dispensing with his presence or the order of the court dispensing with such presence. In arriving at his decision, the learned Judge made the following observation - "the action of the accused in not objecting to the evidence subsequently or the fact that his pleader did not raise any objection at the time when the evidence was recorded, cannot cure an irregularity which goes against the fundamental principles of criminal jurisprudence, that all evidence, subject to the provisions of the Code, should be taken in the presence of the accused. " It seems that the learned Judge, equated the position of a non-petitioner in proceedings under section 488 Cr. P. C. with that of a criminal case. For reasons already stated, the husband or father cannot be said to be an accused and the proceedings against them are not purely criminal proceedings in the strict sense as they partake more of civil than of criminal character. The attention of the learned Judge does not appear to have been invited to this aspect of the matter and, with respect, I find it difficult to subscribe to the view taken by him. This leaves Anil Ranjan Sen's case (3) for consideration. That case was based on Rupchand Issardas's case (1) and Venkatrao's case (2) and it is not therefore necessary to consider it separately. From the view I have taken of the provisions of sub-section (6) of section 488 Cr. P. C. , it would follow that there is no force in the argument that the proceedings before the learned Magistrate were vitiated simply because he did not make a formal order dispensing with the personal attendance of Ram Ratan. As no other point has been urged on behalf of the petitioner, the revision petition fails and is dismissed. . ;