P. B. MUKHARJI, J.

( 1 ) THIS is a reference by the learned Additional Sessions Judge, Alipore, under Section 438 read with Section 435 of the Code of Criminal Procedure - challenging the legality and propriety of the order of the Magistrate dated the 7th November, 1964 which is in the following terms: the opposite party is produced under arrest. He is sentenced to R. I. for 6 months for failure to pay maintenance for 9 months and 16 days for the period from 16. 9. 93 to 30. 6. 64 without any excuse as he has means to pay.

( 2 ) THE first point raised in the letter of Reference is whether it could be said that on the facts of this case the Magistrate had any evidence to show that the opposite party Sukdeo Bin had means to pay, but did not pay and whether he made any enquiry for that purpose on the records of this case. The learned Additional Sessions Judge appears to come to the conclusion that the Magistrate was wrong in throwing the opposite party to prison when he was brought under arrest before the Court under a warrant without calling upon him to show cause.

( 3 ) WHETHER the Magistrate had reason to come to the conclusion that the opposite party had no means or not is here

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