BERI, J. - (1.) THIS is a reference made by the learned Sessions Judge, Ganganagar, in a proceeding under sec. 488 of the Code of Criminal Procedure holding that the order of the Sub-Divisional Magistrate dated 11th February, 1963 was executable and therefore recommended that the order passed by the said Magistrate on 29th June, 1964, by which he held it to be otherwise be set aside.
(2.) THE circumstances leading to the present reference briefly stated are these : On 22. 1. 1963 Smt. Mukhtiar Kaur wife of Ajmer Singh made an application u/sec. 488 of the Code of Criminal Procedure stating that she was married on 4. 3. 1948 according to law with Ajmersingh and because she did not bear any child for 3. 4 years after the marriage her husband started manifesting indifference in the beginning but eventually ill-treated her. On account of the intervention of common relations she somehow managed to live with him. About 9 months before the date of the application her husband and his parents forcibly turned her out of the house. Ajmersingh on 26. 5. 1962 married Smt. Balbir Kaur daughter of Kernail Singh and she has, therefore, instituted a criminal complaint on account of the said illegal marriage u/secs. 494 and 114 of the I. P. C. which is pending. She was unable to maintain herself whereas her husband had considerable properties which were yielding good income. She, therefore, prayed for a maintenance allowance in the sum of Rs. 250/-per month. On 11th February, 1963 the husband appeared in answer to the application aforesaid and submitted a deed of compromise whereby the husband undertook to pay Rs. 80/- per mensem by way of maintenance allowance to Smt. Mukhtiar Kaur the first instalment for three months being payable on the 15th May, 1963 and they prayed that the application under sec. 488 Cr. P. C. be disposed of in accordance with the terms of the compromise. This deed was read over to both the parties and they acknowledged it to be correct, and it was accordingly verified. THE learned Sub-Divisional Magistrate, Hanumangarh passed an order on the same date stating that as the parties had submitted a deed of compromise which after due verification had been placed on the record and in view of the compromise the proceedings were dropped. On 4th October, 1963, Smt. Mukhtiar Kaur moved an application for realisation of the sum of Rs. 480/- alleging that her husband Ajmer Singh has not paid the allowance of Rs. 80/- per mensem. A reply was filed by the husband in which he stated that he had entered the compromise to pay Rs. 80/- per mensem to Smt. Mukhtiar Kaur because there was a criminal complaint under secs. 494, 114 I. P. C. which was pending against him and his parents, and in order to escape the consequences of the criminal complaint he was coerced into reaching a compromise and therefore it was not capable of being legally executed. Along with the reply he filed a certified copy of the order of the Court of the Munsiff Magistrate, Ganganagar dated 5th March, 1963, whereby the complaint under sec. 494/114 was permitted to be compounded, On 29th June, 1964 an objection was taken before the learned Sub-Divisional Magistrate, Hanumangarh, that the application made by Shri Jwala Singh, the father of Smt. Mukhtiar Kaur, could not be entertained because no power of attorney was presented by Jwala Singh in his favour and further that the order passed by the Sub-Divisional Magis-trate on 11th February, 1963 was no order awarding maintenance allowance and the proceedings were dropped and the same could not be executed. Regarding the non-submission of the power of attorney the learned Magistrate observed that Jwala Singh could be permitted to do so even then but the main point which required consideration was whether the order of 11th February, 1963 was enforceable or not and he came to the conclusion that the order was unenforceable because the proceedings were dropped and no specific order was passed. A revision application was presented before the Sessions Judge, Ganganagar, against the order of the learned Magistrate dated 29th June, 1964. THE learned Sessions Judge observed that the intention of the parties and that of the learned Sub-Divisional Magistrate was clear that the parties were to act in accordance with the compromise mutually arrived at. THE Magistrate was not called upon to fix the maintenance amount himself because the parties had reached the compromise and having regard to the language employed in the order of the 11th February, 1963, the Sub-Divisional Magistrate was wrong in holding that the said order was not executable. He has accordingly recommended that the order of the Sub Divisional Magistrate of the 29th June, be set aside and he be directed to enforce the terms of the compromise entered into between the parties. When the reference came before this Court Bhargava J. by his order dated 22nd October, 1955 expressed the view that a notice should be issued to the non-applicant Ajmer Singh to show cause why the order passed by the learned Sub-Divisional Magistrate on l lth February, 1963, be not modified in an appropriate manner so as to conform with the provisions of sec. 488 of the Code of Criminal Procedure. As the counsel was not prepared to accept that notice, the same was issued to Ajmer Singh. I have heard Mr. Purohit appearing for petitioner Smt. Mukhtiar Kaur and Mr. D. P. Gupta for her husband Ajmer Singh. On an objection being taken by Shri Gupta that Shri Jwala Singh, the father of Smt. Mukhtiar Kaur was not competent to present any application on her behalf or to appoint lawyers, Mr. Purohit submitted the original power of attorney duly registered in Gurmukhi script. He has further furnished its Hindi transliteration. An objection has been raised by the learned counsel for Ajmer Singh that a complaint or an application in a criminal Court can only be moved by a party or a counsel appointed by such a party. The idea of a power of attorney holder acting on behalf of a complainant or applicant is foreign to criminal courts and to the criminal procedure, and such an illegality cannot be cured under sec. 537 Cr. P. G. or by any other provision under the said Code. The learned counsel has not cited any law in support of this general proposition. He, however, invited my attention to an observation contained in Mst. Dhulki vs. State (1 ). Dave, J. , as he then was, has observed that the Magistrate had no authority to initiate proceedings under sec. 488 Cr. P. C. suo moto since that section contemplates an application for maintenance either by the aggrieved wife or by one who is incharge of the neglected child. This observation does not render any assistance to the learned counsel. I have the original power of attorney executed by Mst. Mukhtiar Kaur supported by an affidavit of Jwalasingh. The Hindi transliteration of the said power amply confers on Jwala Singh an authority to take steps to realize the maintenance allowance. Under the Power of Attorney Act (VII of 1882) a married woman even if she is a minor can by a nontestamentory instrument appoint an attorney on her behalf for the purpose of doing any act which she might herself do. The application made by Jwala Singh on behalf of Smt. Mukhtiar Kaur is not prohibited by the Code of Criminal Procedure. In my opinion, this objection is devoid of substance and must be rejected. The learned counsel for the husband Ajmer Singh then submitted that the order of the 11th February, 1963 was a correct one and called for no interference by this Court pursuant to the notice issued by Bhargava, J. on 27th October, 1965. In support of his submission he made reference to Budha Ram vs. Khem Devi (2), Sham Singh vs. Mt. Hakam Devi (3), S. W. Colbert vs. Mrs. H. Colbert (4), Shahbaz vs. Mt. Amrizadgai (5), Krishnappa Chettiar vs. Sivagami Achi (6) and State of Madhya Pradesh vs. Parasram and another (7 ). Let me examine these cases. In Budha Ram's case (2), Dalip Singh, J. observed that once a compromise is entered into to pay maintenance, there is no refusal to maintain on the part of the husband and, therefore, section 488, Cr. P. C. had no longer any application. The proper remedy according to the learned Judge was before a civil court to enforce the compromise. This decision was reached by following two earlier decisions of the Punjab and does support to some extent the contention made by the learned counsel. Addison, J. in Sham Singh's case (3) observed that where, in an application under section 488, the parties arrived at a compromise, the proper course for the Court was to dismiss the application leaving the parties to enforce the compromise in civil courts. Such a compromise is a bar to an application under section 489, and an order of maintenance passed in accordance with a compromise could not be enforced by a criminal court. He also relied upon the earlier decision of the Punjab, which Dalip Singh, J. had followed. Ghose, J. in Colbert's case (4) followed Sham Singh's case (3) of the Lahore High Court. Almond, J. C. in Shahbaz's case (5) following Lahore and Calcutta authorities characterised the compromise between the parties as one of civil nature and enforceable by the civil courts only. Ramaswami, J. in Krishnappa Chettiar's case (6) observed that in a compromise between the parties in a proceeding under sec. 488 (4) an application by wife for enhancement did not lie. This case also has followed the Punjab decisions. Parasram's case (7) relates to the circumstances altogether different from the one before me. There a petition for maintenance by a wife was made and it was compromised, the husband undertaking to maintain the wife, the order incorporating the compromise was not passed and the petition was simply filed; a subsequent similar petition by the wife was made and it was urged that it was barred. Golvalker, J. held that subsequent petition for maintenance was not barred. Learned counsel for the applicant Smt. Mukhtiar Kaur has relied upon Debjani Biswas vs. Rasik Lal Biswas (8 ). Derbyshire, C. J. delivering the judgment of the Bench observed that an order lawfully made by a Magistrate under sec. 488 whether on compromise or otherwise must be deemed to be enforceable in the manner provided by sec. 488 (3 ). The substantial question which arises is that when a proceeding under sec. 488 Cr. P. C. terminates with a compromise between the parties whether or not such a compromise can be enforced by a criminal court exercising powers under sec. 488 (3 ). The cases, which I discussed above, seem to lend support to the contention of the learned counsel for the husband that such compromises can be enforced by a civil court only and they are not executable under the Code of Criminal Procedure. The principal reason which persuaded some of the learned Judges was that sec. 488 Cr. P. C. comes into operation only when a person having sufficient means neglects or refuses to maintain his wife. In a compromise whereby the husband offers to maintain his wife the question of refusal stands liquidated. With this interpretation, with great respect, I am unable to agree. My reasons are: Under sec. 488 of the Code of Criminal Procedure the Magistrate in a claim by wife for maintenance has to consider firstly whether the husband has sufficient means and secondly whether he has neglected or refused to maintain his wife and thirdly what would be the adequate allowance for maintenance of such wife. Where the parties are not at variance that the husband has sufficient means and that he has neglected or refused to maintain his wife they can certainly agree with regard to the quantum of maintenance that will be adequate or reasonable having regard to the status of the parties. Such a compromise does not necessarily mean that there was no earlier neglect or refusal to maintain. Further sec. 488 of the Code of Criminal Procedure is a speedy and summary remedy to compel a husband or a father for the maintenance of his wife and child because such husband or father has neglected or refused to do so, so that the possibility of vagrancy of such woman and child is eliminated and social order is saved from being disturbed. Merely because a wife or some one on behalf of a child has agreed to the quantum of maintenance they may be deprived of the fruits of such agreement and be driven to the lethargic civil proceedings is to put a premium on reasonableness and is to provide a contrivance to an unscrupulous scheming husband or father to dodge his responsibility and thereby promote vagrancy or assist starvation and defect the very object of sec. 488 Cr. P. C. Such could not have been the intention of the legislature. In fact it runs counter to it. In G. Pandari vs. Parkash Rao (9) it was observed that proceedings for maintenance in a criminal Court are more in the nature of civil proceedings. The criminal process is applied for the purpose of summary and speedy disposal in the interests of society, so that helpless wives and children are not left on the road while those who are liable to maintain them have the capacity to do so. I may profitably turn to Pal Singh vs. Mt. Nihal Kaur (10), a case to which neither counsel drew my attention. This is a Division Bench case. Addison and Dalip Singh, JJ. , constituted the Bench Budha Ram's case (2) was decided by Dalip Singh J. The Division Bench observed that Dalip Singh, J. went "too far" in Budha Ram's case (2 ). About Sham Singh's case (3) the learned Judges observed that the head note was erroneous. Referring to Mangayyamma vs. Appalaswami (l l) the learned Judge proceeded to say, - "the husband was prepared to consent to judgment without giving the petitioner any further trouble so long as her claim for maintenance was reasonable and therefore the Magistrate passed orders in the terms of this agreement or compromise. This was characterized as being a very sensible arrangement which did not in any way detract from the force of the order. With this view I am in agreement, as will be apparent from what I have said above provided always that there are not super-added conditions and not coming within the purview of sec. 488, Criminal Procedure Code. It follows from the Madras ruling that if a husband and wife agree at once as to the rate of maintenance without adding conditions which cannot form part of the order passed under sec. 488, Criminal Procedure Code, the matter can be ended atonce by the Magistrate passing an order in terms of the compromise to the effect that he awards a monthly allowance of such and such an amount, as the compromise by itself will be sufficient evidence of the condition precedent to the application being lodged. " In other words, the two learned Judges sitting together came to the conclusion that in a proceeding under sec. 488 Cr. P. C. there can be no objection to the parties compromising with regard to the quantum of maintenance allowance. This agreement may in itself be sufficient proof of the prior negligence and refusal on the part of the husband. It is unfortunate that Pal Singh's case (10) was not taken notice of in 1933 Calcutta or 1945 Peshawar. Nor was 1931 Madras taken into account in. 1953 Madras. As a result of the discussion aforesaid I am of the view that it is open to the parties in a proceeding under sec. 488 Cr. P. C. to reach an agreement by way of compromise regarding the quantum of maintenance and such an agreement is enforceable under the provisions of sec. 488 (3) of the Code of Criminal Procedure. The authority of Budharam's case (2) is considerably shaken by Palsingh's case (10 ). Even Shyam Singh's case (3) stands explained by the same learned Judge in Pal Singh's case (10 ). Colbert's case (4) was a case where no opposition was made and stands answered by Debjani Biswas's case (8), which is the Division Bench case of the same court. I am unable to agree with the proposition laid in Shahbaz's case (2) without reference to Pal Singh's case (10) and regret that I am unable to agree with Krishnappa's case (6) which has not been taken notice of the authority of its own Court in Mangayamma's case (11 ). Let me closely examine the order passed by the learned Magistrate on 11th February, 1963. When translated it reads, - "the applicant with counsel present. The opposite party is present. Both the parties have presented a compromise which has been brought on record after due verification. Therefore, in terms of compromise (c:os jkthukek) the proceedings of the application of the petitioner are dropped" The word "dropped" in this order is undoubtedly capable of the interpretation sought to be put by the learned counsel for the non-applicant that the petition was dismissed as it ought to have been in accordance with the observation of Dalip Singh, J. in Pudha Ram's case (2 ). 1 he other interpretation is that the word "dropped" meant that the proceedings came to an end. The word "dropped" admits of an elastic connotation. One of the meanings of the word "drop" as given in Websters New 20th Century Dictionery, 2nd Edition, p. 558 is "to permit to subside. " The controversy in my opinion subsided after the compromise in accordance with the terms thereof. To borrow the phraseology in Debjani Biswas's case (8) (he proper language for an order to be passed in these circumstances ought to have been "petition of compromise filed and order in terms of compromise. " The learned Magistrate in the case before me, however, added that the proceedings were dropped. In saying so he merely indicated the consequence of the orders in terms of compromise, that the proceedings came to an end. In my opinion, therefore, some what defective as the language of the order of 11th February, 1963, may be to all intents and purposes what the learned Magistrate said was that the compromise had been filed by the parties. It was verified to be correct. In view of the compromise, the proceedings came to end. For the revision of the order of the Sub-Divisional Magistrate dated 11th February, 1963, this Court issued a notice to Ajmer Singh. In answer to this notice one of the objections raised by the learned counsel for Ajmer Singh is that under Article 131 of the Indian Limitation Act, 1963 such a revision is barred by time. Suffice it to say that Article 131 has no application where a High Court suo moto wishes to revise an order passed by a criminal court subject to the revisional jurisdiction of such Court. However, the construction which I have put on the order of 11th February, 1963, does not necessitate any revision of the order of that date and if it did require one, I would have had no hesitation in revising it. The learned counsel then argued that even if the order of the Sub-Divisional Magistrate dated 11th February, 1963, was enforceable it should not be enforced unless the objection relating to coercion raised by the wife is decided by the Sub-Divisional Magistrate. He cited Hari Narayan vs. Mt. Rani Devi (12 ). No enforcement of the order made under sec. 488 (1) or (2) may be made if sufficient cause is shown for its non-compliance. The short question is whether the alleged coercion is such a. circumstance which can be enquired into for the noncompliance of the order of enforcement passed by the Magistrate on 11-2-1963. Sec. 488 has enumerated certain circumstances under which the failure on the part of the husband or father to comply with the orders under sec. 488 is permissible. A circumstance, however, antecedent to the compromise - a compromise which was duly verified before the Magistrate himself - does not in my opinion fall within the four corners of sec. 488 enabling the Magistrate to make an inquiry therein so that the effect of the order passed under sec. 488 may the postponed. If the agreement was reached as alleged by the husband under coercion it is open to the husband to take appropriate proceedings for setting it aside if he is so advised. The factum of such alleged coercion is not open to inquiry by the Magistrate who has to enforce an order under Sec. 488 Cr. P. C. The Madhya Bharat case cited by the learned counsel was altogether under different circumstances and does not support him. The result is that this reference is accepted. The order of the Magistrate dated 29th June, 1964, is erroneous and is hereby set aside. He is directed to enforce the order of 11th February, 1963 in accordance with law. . ;