JUDGMENT
Bhuvaneshwar Presad, J.
1. This is an application in revision under Section 397 and 401 of the Code of Criminal Procedure, 1975 (in short the ‘Code’). It is directed against the order dated 15.9 1989 passed by the Sub-Divisional Judicial Magistrate, Katihar, in Maintenance Case No. 19 of 1984 (Indumati Jha v. Anil Kumar Jha) by which the learned Magistrate was pleased to allow the claim of ad-interim maintenance of opposite party No. 2 and ordered the petitioner to pay her a sum of Rs. 300/- per month.
2. It appears that the aforesiad maintenance case was started on the basis of an application filed by opposite party No. 2 under Section 125 of the Code in which she alleged that she is the legally married wife of the petitioner. The marriage was solemnised on 11.12.1980 at Manihari and since thereafter she was living with the petitioner as his wife. However, the behaviour of the petitioner towards opposite party No. 2 was not good. He had started torturing her in various ways and was demanding a sum of Rs. 51,000/- and a car from her father. Opposite party No. 2 also levelled allegation of cruelty and ill-behaviour against the petitioner and had stated that the petitioner was having illicit connection with some other woman. An attempt to get good relationship restored between the petitioner and opposite party No. 2 failed on 10.2.1984. Opposite party No. 2 was turned put from the house of the petitioner in presence of her father with a threatening that if she would be return back without arranging for the money and car she would be done to death. The father of opposite party No.2 is a retired person unable to maintain his daughter (opposite party No. 2). The petitioner is a man of means and is employed as I.O.W. (Special) Railways. Hence opposite party No. 2 claimed maintenance for a sum of Rs. 500/- per month from the petitioner.
3. The petitioner had appeared before the learned Court below and had denied these allegations. He further contended that his parents-in-law started visiting him regularly at Sahibganj and they demanded money from him. On his refusal, his father-in-law took away opposite party No. 2 to his village without consent of the petitioner. When the petitioner sent his younger brother for Bedal in February, 1983, the parents-in-law refused to send her. Opposite party No. 2 is an educated lady and she is able to maintain herself. The petitioner receives only one thousand rupees as pay and his to maintain his famly members. During the course of trial witnesses were examined and on 7.9.1989 opposite party No. 2 filed an application for an order of ad-interim maintenance. On the following day a petition was filed on behalf of the petitioner for an adjournment to enable him to file the rejoinder. The learned Court below refused to grant time for filing rejoinder without giving any cogent reason and fixed ad-interim maintenance to opposite party No. 2 by his impugned order dated 15.9.1989.
4. Being aggrieved by the action of the learned Trial Court the petitioner filed a transfer petition before the learned Sessions Judge which was also fixed on 15.9.89 for hearing on the admission matter. An application for stay of the proceedings of the maintenance case till the disposal of the transfer application was filed on 15.9.89 before the Court of the learned Sub-Divisional Judicial Magistrate. He, however, refused to stay the proceeding and proceeded to pass the impugned order on this date. With regard to the occurrence dated 10 2.1984 in which the petitioner is said to have turned out opposite party No. 2 from his house. Sahibganj P.S. Case No. 106 of 1984 under Section 4 of the Dowry Act, has been instituted in which also similar allegations have been levelled against the petitioner. Under this circumstance according to the mandatory provisions of Section 210 of the Code the learned Court below should have stayed further proceeding in the case pending before him under Section 125 of the Code. The learned Magistrate, however, passed the impugned order against the principles of natural justice and without appreciating the relevant provisions of law. On these grounds, it has been contended that the learned Court below should not have passed the impugned order when he knew that a transfer petition against him has been filed. The learned Court below should have passed the final order in the case in place of passing of ad-interim order of maintenance. The learned Court below should have held that there was no prima facie case before him for passing the order of ad-interim maintenance. On these grounds, amongst others, it has been contended that the impugned order dated 15.9.1989 passed by the learned Sub-Divisional Judicial Magistrate, Katihar, in Maintenance Case No. 19 of 1984 the quashed.
5. From the record it appears that the case on 27.10.1989 this Court had heard the learned Counsel for the petitioner and admitted this application. It was further observed as follows :
“Till the appearance of opposite party No. 2 the operation of the order dated 15.9.1989 shall remain stayed”.
The order sheet dated 10.4.1991 shows that on behalf of opposite party No. 2 it was stated that she had appeared before this Court on 12.12.1989 and, therefore, as per the above mentioned order the operation of the stay of the order of the learned Sub-Divisional Judicial Magistrate, Katihar, dated 15.9.1989 was no longer to remain in force after her appearance. In this connection, my attention has been drawn to the order dated 23.1.1991 which was passed by the learned Judicial Magistrate according to which he held that the order dated 27.10.1989 passed by this Court by which the stay of the operation of the order dated 15.9.1989 passed by the learned Sub-divisional Judicial Magistrate had lost its force. Opposite party No. 2 had accordingly prayed that the petitioner may be directed to pay the amount of maintenance to her. However, when the parties were heard on this petition, it was felt necessary that instead of hearing them only on the point of stay the criminal revision itself should be heard and disposed of. As such the parties have been, heard on the merit of criminal revision itself and by this judgment I am disposing of the criminal revision.
6. On 6.3.1991 a supplementary affidavit has been filed on behalf of the petitioner stating therein that the matter is pending for disposal before Sri A. K. Barial, Judicial Magistrate, Ist Class, Katihar, who by his order dated 23-1-91 had held that the order of stay passed by this Court on 27-10-1989 had lost its force. This interpretation by the learned Judicial Magistrate is wrong.
7. I have heard the parties on these points. Since I am disposing of this revision application on merit, I do not propose to pass any order with respect to the prayer for stay made by the petitioner. However, it would suffice to say that the operation of the order dated 27-10-1989 passed by this Court was to remain in foree only till the appearance of opposite party No. 2. According to opposite party No. 2, she had appeared before this Court on 1212-1989 and thus it is patently clear that the order of stay dated 27-10-1989 had lost its force on 12-12-1989 when opposite party No. 2 had appeared before this Court. From this it would appear that the interpretation put by the learned Judicial Magistrate, in his order dated 23-1-1991, cannot be said to be unjustified. The same appears to be the correct interpretation.
8. At the time of hearing the learned Counsel, appearing on behalf of the petitioner, has seriously contended that in view of Section 210 of the Code the learned Court below should not have proceeded to hear Maintenance Case No. 19/84 and to pass the impugned order. In this application it has been contended that on 10.2.1984 the present petitioner had turned out opposite party No. 2 from his house with a threatening that if she would return to the house without arranging for the money and car she would be done to death. It further appears that with respect to the same incident Sahibganj P.S. Case No. 106 of 1984 under Section 4 of the Dowry Prohibitation Act has been lodged. It is now the contention of the petitioner that in view of this police case the learned Judicial Magistrate should have stayed his hand and should not have proceeded with Maintenance Case No. 19/84. Since the petitioner has raised a substantial question of law I think it necessary to dispose it of.
9. In this connection, firstly a reference may be made to Section 210 of the Code. It runs as follows :
“Section 210 (1): When in a case instituted otherwise than on a police report (here-in-after referred to as a complaint case) it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquiry into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the Police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”
10. From this Section it would appear that it provides the procedure to be followed by a Magistrate in a complaint case in relation to the offence for which an investigation by the police is in progress. In such a situation, the Magistrate is required to stay the proceedings of the complaint case and to call for a report from the police officer conducting the investigation. This shows that in order to attract the provisions of this Section the complaint case as also the police case should relate to an offence. The offence alleged to have been made out the complaint case may be under inquiry or trial before a Magistrate and if, in the meantime, the Magistrate is informed that investigation by the police is in progress in relation to the same offence he shall stay the proceedings of such inquiry or trial of the complaint case and shall call for a report. Here the important word is “offence”. The complaint case as well as the police investigation must relate to the same offence. It is only then that the Magistrate is required to stay the proceedings of the complaint case and to call for a report from the police officer conducting the investigation.
11. The word “offence”has been defined under Section 2(n) of the Code. It runs as follows:
“2(n). “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattletrespass Act, 1871; (1 of 1871).”
From this definition it becomes clear when an act or omission is punishable in any law it will come within the difinition of an offence.
12. I will next proceed to refer to the provisions under Chapter IX of the Code which relates to the order for maintenance of wives, children and parents. Section 125 is this Section under this Chapter. It provides that if any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain hereself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole. Under Sub-section (3) of Section 125 of the Code a procedure has been prescribed for realising this monthly allowance from the person in case of breach of the order passed under Section 125 (1) of the Code. A perusal of the various provisions of this Chapter clearly goes to show that it does not relate to any offence as defined in Section 2 (n) of the Code. Hence clearly the provisions of Section 210 of the Code would not apply to be a proceeding under Section 125 of the Code. Under this circumstance, I do not find any merit in this contention of the learned Counsel for the petitioner.
13. From the impugned order it appears that opposite party No. 2 had filed a petition for ad-interim order of maintenance in her favour. It has been observed that the learned Magistrate was of the opinion that there would be inordinate delay in the disposal of this maintenance case since the present petitioner was trying to delay it as much as possible. It was under this circumstance that the learned Judicial Magistrate had ordered for payment of Rs. 300/- per month to opposite party No. 2 by way of ad-interim relief for her maintenance. It is against this order that the present revision application has been filed.
14. The learned Counsel appearing on behalf of the petitioner has, however, drawn my attention to two photo copies of the order passed by the learned Magistrate on 15.9.1989. One of them is Annexure-‘2’. The certified copy of the order dated 15.9.1989 (Annexure-‘2’) appears to have been issued on 29.9.1989. There is another certified copy of the order on the record which appears to have been issued on 20.10.1989. In this certified copy the following words appears to have been added by the learned Magistrate “Karjalaya dono Abhibaktaon lekhankit ko suchit karen.” On the margin of this ordersheet the endorsement of the Advocates dated 28.9.1989 also appear. These endorsments are absent from Annexure-‘2’. On this basis it has been contended that this endorsement has been subsequently added after the issue of its certified copy on 29.9.1989. There appears to be some substance in this allegation. It is not clear under what circumstance the above noted endorsement was made in the order dated 15.9.1989. However, so far as merits of the present case are considered this is hardly going to be make any difference.
15. From the impugned order it appears that the parties were heard on this maintenance case and thereafter the order for payment of Rs. 300/- per month by way of ad-interim maintenance was passed by the learned Magistrate since he was conscious of the fact that the present petitioner was adopting delaying tactics. Under this circumstances, I do not find any justification for interfering with this order.
16. In the result, this criminal revision application is dismissed. But in the circumstance of this case there would be no order as to costs.